Cases by Issue - Search and Seizure

Florida v. Harris - Oral Argument

Fri, 02 Nov 2012 21:21:06 +0000

Case:

Florida v. Harris

Media File:

11-817_20121031-argument

Related Transcript:

11-817_20121031-argument

Transcript:

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: Mr. Garre, welcome back.

Gregory G. Garre: Thank you, Your Honor, and may it please the Court:

The question in this case is when does a trained drug detection dog's alert to a vehicle establish probable cause to search the vehicle.

Justice Antonin Scalia: Are you for or against the dog this time?

Gregory G. Garre: For it again, Your Honor.

Justice Antonin Scalia: For it again.

Gregory G. Garre: The Florida supreme court answered that question by erecting what we think is an extraordinary set of evidentiary requirements that, in effect, puts the dog on trial in any suppression hearing in which defendant chooses to challenge the reliability of the dog.

I think, most fundamentally, the problem with the court of appeals' -- the Supreme Court's decision -- is that it misconceives what this Court's cases conceive of the probable cause requirement, converting probable cause, which this Court has referred to as a substantial chance or fair probability of the detection of contraband or evidence of a crime, into what amounts to a continuously updated batting average and a requirement that dogs be virtually infallible.

That -- that--

Justice Sonia Sotomayor: Mr. Garre--

Justice Ruth Bader Ginsburg: That -- that goes to the field performance; but, the other requirements, that the -- some showing -- the test -- that the training program is reputable, some showing that the handler, not only the dog, that is -- has had training, it seems to me those two are not -- there's nothing improper about that.

Gregory G. Garre: --Well, and I think, Your Honor, under our view of it, it's okay to inquire into whether or not the dog has successfully completed a bona fide training program, which -- which we think is a training program in which the dog is going to be tested for proficiency, including in a setting where some vehicles have drugs and some vehicles don't.

And Aldo, the dog in this case, clearly was.

He'd received a 120-hour training program with the police department in Apopka, Florida.

He received a 40-hour refresher seminar by another police department in Dothan, Alabama.

And he was subjected to continuous weekly training, in which part of that training consisted of taking him out, walking him by some vehicles that contained cars, some vehicles that didn't.

And the testimony of Officer Wheetley was that Aldo's performance was really good.

And what he meant by that was that if there were eight cars with drugs.

Justice Ruth Bader Ginsburg: Then why did -- then why didn't they get the dog recertified?

By the time of the search, the certification had expired 16 months.

Gregory G. Garre: It was a lapse, Your Honor.

The dog subsequently was recertified.

Our position is that the Fourth Amendment doesn't impose an annual certification requirement.

Some states have it, some states don't.

I think, more important in this case was the fact that the dog was continuously trained, continuously evaluated and trained.

Justice Ruth Bader Ginsburg: Well, what do you -- what do you have to show to establish that the dog was well trained.

Gregory G. Garre: Well, Your Honor, I think the most important thing is successful completion of proficiency testing.

I mean, what -- what our friends would like, and what the Florida supreme court would like, was really for the courts to delve into all aspects of the training, what types of distracters were used, what type of smell and printing was used and the like.

Justice Ruth Bader Ginsburg: Well, if it were just that -- you have the show that the program was reputable.

Gregory G. Garre: Well, certainly that it was authentic, Your Honor.

And here, the programs were conducted by actual police departments in -- in Alabama and Florida.

And this Court ordinarily would presume regularity in those sorts of training settings.

And there's no reason to approach the training of a dog any differently, but--

Justice Sonia Sotomayor: --I thought all of these training facilities were private entities that contracted with police departments.

Gregory G. Garre: --No, Your Honor.

The certification.

Certification usually is done by private entities which are operated by former law enforcement officers.

But the training itself, it usually and here was done by police departments themselves.

Justice Sonia Sotomayor: Could I go back to Justice Ginsburg's question?

There's no -- what I hear -- read the Florida court saying is there's no national standard for certification.

That's correct?

Gregory G. Garre: Yes.

Justice Sonia Sotomayor: There's no national standard that defines what's adequate training, correct.

Gregory G. Garre: That's right.

There--

Justice Sonia Sotomayor: So -- let me just finish my question.

So assuming there's no national standards, then how do you expect a judge, without asking questions about the content of the certification process, the content of the training process, and what the results were and how they were measured, how do you expect a judge to decide whether the certification and the training are sufficiently adequate.

Gregory G. Garre: --And I think that the central inquiry that we would think the judge would undertake is to determine whether or not the dog was performing successfully in proficiency testing.

After all, that's why we train the dogs.

And--

Justice Sonia Sotomayor: But you still have to ask what that training was, and the judge still has to determine whether the judge believes it was adequate, correct?

That's what the totality of circumstances requires.

Gregory G. Garre: --Well, Your Honor, in our view, we don't think it's -- it's an appropriate role for the Court to delve into the contours of the training, what specific methods were used to train or distract or -- you know, all the contours that they bring up in their brief.

Justice Sonia Sotomayor: So what does a judge do, just say, the police department says this is adequate, so I have to accept it's adequate.

Gregory G. Garre: Not -- you would have to accept it, Your Honor, on its face.

I think you -- in a record like this -- and I think this record is clearly sufficient -- and, ultimately, that's what we're asking this Court to hold -- what you have in the record is evidence--

Justice Sonia Sotomayor: Mr. Garre, I -- I have no problem that this record -- with this record.

My problem is how do we rule.

Because it seems the me that I'm not quite understanding what -- how -- the legal rule you're asking us to announce.

I think the legal rule, you're saying, if the dog has been tested for proficiency by a police department's determination of what's adequate for proficiency, that establishes probable cause.

That's what I think the rule you want us to -- to do.

I don't know what the role of the judge is in that--

Gregory G. Garre: --I think it would be close--

Justice Sonia Sotomayor: --with that rule.

Gregory G. Garre: --close to that.

We would ask whether or not the dog successfully treated -- completed training by a bona fide organization.

And here--

Justice Sonia Sotomayor: No certification, no questioning of the handler and the handler's training?

The judge can't do any of that and shouldn't do any of that, is what you're saying.

Gregory G. Garre: --Certification is not required.

It may be one way that the police department could establish reliability a different way, but certification itself is not required when you have a record of the type of training that you have here.

We do think that you could put the handler on the stand and ask about the reliability, certain questions about reliability.

We don't think, in a record like this, the judge would say, well, it says that he completed 120 hours in narcotics detection at the Apopka, Florida police department, and 40 hours at the Dothan police department, so--

Justice Sonia Sotomayor: So it's not enough for you to win by us saying that a court can't insist on performance in the field records, that it has to look at the totality of the circumstances.

What other case have -- have we announced, under a totality of the circumstance test, a absolute flat rule like the one you're proposing?

Where else have we said that one thing alone establishes probable cause--

Gregory G. Garre: --Your Honor--

Justice Sonia Sotomayor: --that one factor alone.

Gregory G. Garre: --I think one area where the Court mentioned that was in the Lago Vista case, where it talked about the importance of clear rules for police officers--

Justice Antonin Scalia: You know, I suppose that if the reasonableness of a search depended upon some evidence given by a medical doctor, the Court would not go back and examine how well that doctor was trained at Harvard Medical School and, you know, what classes he took and so forth, right.

Gregory G. Garre: --Absolutely.

And the same way that when an officer provides evidence for a search warrant, we don't demand the training of the officer, what schools he went to or what specific courses he had in probable cause.

Justice Ruth Bader Ginsburg: Mr. Garre, you said there was the certification, training program, but you gave a third.

You said, or otherwise show proficiency in locating narcotics.

So if there is no certification, no training, how would the state establish that the dog was reliable in detecting drugs?

Gregory G. Garre: Your Honor, I think that that would be the unusual case, and it probably would be captured by the other factors; but, what we meant by including that is that there's no limit on the types of evidence that the police could submit to show reliability.

If you didn't have certification or a formal training program, the fact that there was evidence that a dog like Aldo successfully performed in weekly training over the course of the year, and the police submitted the records, like the records in the Joint Appendix in this case at pages 106 and 116, that might be another way of establishing reliability.

But the -- the central way would be showing that the dog successfully completed training or that the dog was certified.

Justice Ruth Bader Ginsburg: And I think you'll agree that the handler, too, the handler would have to--

Gregory G. Garre: Well, Your Honor, we don't think there is a Fourth Amendment requirement of certification for handlers.

Again, this is something that varies among states.

Justice Ruth Bader Ginsburg: --Not -- not certification, but that the handler has been -- has been trained--

Gregory G. Garre: Yes.

Justice Ruth Bader Ginsburg: --to work with drug detection dogs.

Gregory G. Garre: That's correct.

And Officer Wheetley here, of course, had been trained.

He had gotten a 160-hour course in narcotics detection, and had done training with Aldo in the Dothan, Alabama police department, 40 hours there.

And these dog -- the dog, Aldo, and Officer Wheetley had worked together for about a year before the time of the search.

The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability.

And they have a strong incentive to ensure the dogs are reliable.

That's both because they don't want to miss contraband when it's available -- when it exists in the field; and, also, they don't want to be put into harm's way.

The traffic stop, in particular, is one of the most dangerous encounters police officers face.

They're not going to want to be working with a dog that is consistently putting the officer in a position of searching cars based on an alert when that dog is not reliable in predicting the presence--

Justice Sonia Sotomayor: Counsel, I'm somewhat troubled by all of the studies that have been presented to the Court, particularly the Australian one where, under a controlled setting, one dog alerted correctly only 12 percent of the time.

How and when and who determines when a dog's reliability in alerting has reached a critical failure number?

And what is -- what do you suggest that number is, and how does a judge determine that that's being monitored?

Gregory G. Garre: --We don't think the Fourth Amendment puts a number on it.

This Court has rejected a numerical conception of probable cause.

But with respect to--

Justice Sonia Sotomayor: Well, I'm deeply troubled by a dog that alerts only 12 percent of the time.

That whatever -- whether we have a fixed number or an unfixed number, that seems like less than probability for me.

Gregory G. Garre: --But, but let me -- let me address the, the South Wales study, Your Honor, which I think is the one that you were referring to and it's the primary one relied on by the other side.

In that case they reported that over the course of several years the dogs' alerts resulted in discovery of drugs only 26 percent of the time.

But there is another part of that study which doesn't come up in the amicus briefs, and that's that in 60 percent of the other cases the individuals admitted to using drugs or being in the proximity of drugs.

And if you include that in the universe of accurate alerts, as you should, then the number becomes 70 percent of dogs accurately alerting.

That 70 percent based on the primary study that they rely upon--

Justice Sonia Sotomayor: That doesn't answer what happens to the dogs who have -- dogs grow old.

They are taken out of service for a reason.

So how -- how is a court supposed to monitor whether or not a dog has fallen out of--

Gregory G. Garre: --Well, primarily by looking at whether the dog has successfully completed training.

And you're right, dogs do go out of service when they reach a certain age.

Dogs, like humans, become old and impaired over time.

But -- but looking at weekly training records, like are available in this case, dogs that successfully perform week in and week out in training are going to successfully perform in the -- in the real world.

And, after all, I think the most problematic aspect of the challenges to the reliability of these dogs is that law enforcement agencies across the country at the State and Federal level, law enforcement agencies around the world, and law enforcement agencies that protect this Court rely on detection dogs as reliable predictors of the evidence of contraband, evidence of the presence of explosives or likewise.

And this is an area where we think that a page of logic and experience is worth a volume -- a page of experience and history is worth a volume of logic.

These dogs have been used and are being used in many settings across the country and across the world today.

And the reason they are being used is because the people who work with them know that they are reliable and -- and know by experience that they are reliable.

And that's one of the central problems we have with the argument on the other side, is that ultimately this Court should distrust the reliability of the dogs.

And again--

Justice Elena Kagan: Well, Mr. Garre, could I understand your argument?

Because -- suppose in a case the Government comes in, says this dog has been through training and the handler has been through training.

And this is a case in which -- this is never going to come up when the dog actually alerts to narcotics; it's not worth anybody's time at that point.

It's only going to come up in a case like this, where a dog alerts to narcotics, there is no -- there are no narcotics, but something else is found, and so the person ends up being criminally prosecuted.

So it's, you know, a small universe of cases.

So the Government comes in and says that the dog has been trained.

Can -- can the criminal defendant at that point call the handler, say, how has the dog been trained, what are the methods that -- that the dog has -- was used, and how did the dog do in training?

Can the -- can the defendant do that.

Gregory G. Garre: --Your Honor, I think that the defendant can call the handler and can ask those sorts of questions.

I think the court would cut it off if you got into questions like, well, did they use the play-reward or the scent-imprinting method in training.

Well, what specifics -- because I think that delves too far into the details.

Justice Elena Kagan: But you can ask questions like how did the dog do in training.

Gregory G. Garre: Yes, and that was done here.

Justice Elena Kagan: And how about if you really, if there were some articles that said, you know, that there was a certain kind of method that, for example, led to a lot of subconscious cueing by the handler.

Could the -- could the criminal defendant say, did you use that method that leads to these problematic results?

Gregory G. Garre: I -- I don't think so, Your Honor.

First of all, cueing is not part of this case because they haven't argued that the dog was cued.

The argument is the dog was just sort of inherently reliable.

Justice Elena Kagan: I'm using “ cueing ” not in terms of any intentionality, but one thing that I learned in reading all of this was that one difficulty here is that dogs respond to subconscious cues and that there are different ways of training that make that less or more of a problem.

Gregory G. Garre: And our position is, is that you can inquire into cueing during this hearing, that the defendants can -- can argue that the dog was cued, and in -- in the course of that argument you might be able to get into those sorts of things.

That's different than the challenge that was made here.

There wasn't a cueing challenge made in this case.

I would like to just go back to one of the premises of your question, which is that the dog in this case didn't accurately alert.

The dog in this case accurately alerted to the odor of illegal narcotics.

Justice Elena Kagan: Yes, I didn't mean to say that.

I just meant to say that there were -- there were no drugs found.

Gregory G. Garre: Right.

And, and I think that's another central problem with the Florida supreme court's decision, is this notion that alerts to so-called residual odors aren't indicative of the dog's reliability.

A dog's alert to the lingering odor of methamphetamine which was in the car, must have been in the car in this case, is just as accurate as a dog's alert to the presence of methamphetamine itself in the car.

If I could reserve the remainder of my time for rebuttal?

Chief Justice John G. Roberts: Thank you, counsel.

Gregory G. Garre: Thank you.

Chief Justice John G. Roberts: Mr. Palmore.

ORAL ARGUMENT OF JOSEPH R. PALMORE, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Joseph R. Palmore: Mr. Chief Justice and may it please the Court:

This Court has long recognized the ability of trained dogs to reliably detect target odors and such dogs every day perform critical life and death homeland security and law--

Justice Sonia Sotomayor: Counsel, I have two separate questions for you.

Tying the earlier case a little bit to this one, I am assuming that your position is -- and you'll tell me what the legal standard is -- that a well-trained dog, if he alerts, or walks by a row of apartments, a row of houses, and alerts the drugs, that that simple alert is probable cause for the police to get a search warrant.

Joseph R. Palmore: --Yes, we believe that an alert by a trained dog is sufficient to establish probable cause.

Justice Sonia Sotomayor: So that, without any other information about -- unlike the earlier case or this one, where the police officer saw the individual being nervous, et cetera, et cetera -- that all -- all it takes is a dog alert, despite the fact that there is no study that says the dogs reliably alert 100 percent of the time?

Joseph R. Palmore: 100 percent of the time is of course not required for probable cause.

Justice Sonia Sotomayor: No, I -- I understand.

Joseph R. Palmore: It's a fair probability standard and certainty is not required, and I think that was the principal and fundamental flaw of the Florida supreme court.

It demanded infallibility where infallibility is not required.

In terms of studies, it is actually well studied--

Justice Sonia Sotomayor: So -- so shouldn't we be addressing the question whether a -- an alert, especially outside a home in particular, should be, standing by itself, enough?

Joseph R. Palmore: --I think what the Court -- of course reliability is important.

The question is how you determine reliability.

This is a somewhat unique setting where the law enforcement tool is actually tested initially and on an ongoing basis in a controlled setting to establish its reliability.

Your Honor asked what the standard for bona fide training is.

We think the -- the important point is the outcome of the training: Is the dog proficient, can the dog reliably detect narcotics odor and only narcotics odor in a controlled setting where false positives and false negatives can accurately be measured?

That record is established here.

Justice Sonia Sotomayor: Well, only because the officer said that he satisfactorily performed--

Joseph R. Palmore: Well--

Justice Sonia Sotomayor: --and what the Florida court said: But we don't know what that means.

Joseph R. Palmore: --Well, we -- I think we do know what it means, Your Honor.

There are two different showings that are made here.

There is a formal training and formal certification, both for the dog and the handler separately, and then a separate training, formal training together.

But then, just as important, you have ongoing but less formal proficiency exercises conducted by the handler in which the dog, in a controlled setting where errors could reliably be identified, performed quite strongly, including 2 days before the arrest here.

So that's JA 113 on June 22nd, the dog performed perfectly in a controlled setting.

And we have -- there are records in this case going back several months before the arrest and several months after the arrest showing that -- that this dog passed the test, this dog was reliable.

Chief Justice John G. Roberts: And you agree that that's an appropriate area of inquiry?

Joseph R. Palmore: We think it is.

Chief Justice John G. Roberts: The judge, presented with, here's Aldo, he was -- went to this school, he was certified, the judge can say, when was he last tested, right?

When did he last go through some--

Joseph R. Palmore: Yes, I think the judge can ask those kinds of questions.

Chief Justice John G. Roberts: --The -- the only thing really you say they can't ask about is what's -- what's his record.

Joseph R. Palmore: Well, there is a question -- there are a couple sub-issues here.

The principal vice of the Florida supreme court was in imposing an unprecedented and inflexible set of evidentiary obligations that are part of the Government's affirmative case that the Government has to always introduce any time it seeks to establish probable cause based on a dog alert.

We think that's fundamentally misplaced for a -- for a variety of reasons.

The question of what the Government -- what are fair game questions for a defendant to ask once the handler is on the stand is a -- is a different question.

And--

Justice Anthony Kennedy: And judges do this thousands of times in thousands of cases.

They ask: Was the tip reliable?

There are any number of permutations.

It's a question of whether or not the trial judge was -- made a correct determination in determining that there was or was not sufficient cause for the police to proceed.

It just happens every day.

Joseph R. Palmore: --I think that's right, Your Honor, but I think the -- the critical aspect of reliability in this context is the dog's performance in a controlled setting.

Justice Ruth Bader Ginsburg: Mr. Palmore, you criticize the Florida supreme court for requiring evidence of field performance; and, assuming that that evidence is not required, if the defendant, in preparing for the suppression motion, wants what information there is, would it be proper to seek -- for the defendant -- would it be permissible for the defendant to speak -- to seek through discovery whatever field performance records there are?

Joseph R. Palmore: We don't think so, certainly not as a routine basis.

The kind of burden that that might impose on law enforcement we don't think is justified.

That's a separate question from whether the defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate.

We think, typically, an answer on field performance is not going to be material.

It's not going to be helpful.

Because the problem is in the field, when a dog alerts, the dog is trained to alert to the odor of drugs.

It's like a -- what the -- Florida supreme court wanted a batting average, a batting average that would be calculated when we know the number of at bats, but we don't know in many cases whether there was a hit or an out.

So we had a fraction where we know the denominator but not the numerator.

The answer to the Florida supreme court's question and concern about reliability, again, is to go back to the controlled setting, where we know what's a hit and what's an out, and we can calculate a reliable batting average.

That needs to be where the focus should be in determining the reliability of a dog.

And there should -- there's no reason to constitutionalize the process or the training methodologies that get you to that point.

What matters is, is this dog successful in a setting in which we can measure success.

And I think that it's also important to point out that the Florida court was basically alone in establishing these unprecedented and inflexible sets of evidentiary requirements.

There is a large body of case law in the lower courts on the reliability of drug detection dogs going back 30 or 40 years, and there are no other courts, no other appellate courts to be sure, that have imposed these kinds of requirements on law enforcement when it seeks to establish probable cause for a detection -- for after a detection dog alerts.

Justice Elena Kagan: If you take out the Florida supreme court and this one trial court in Massachusetts, basically you think what courts have been doing is the right thing?

Joseph R. Palmore: In general.

There is some diversity across the courts, but I think that if you look at Judge Gorsuch's opinion in the Ludwig case from the Tenth Circuit, or the Jones case from the Virginia supreme court, you see approaches that are basically sound, where courts have confidence that if law enforcement comes in and says, this dog is trained and has demonstrated proficiency in a training setting, that that dog is generally reliable.

And I think, as Mr. Garre--

Justice Elena Kagan: But where at the same time they'll allow a defendant to question the handler about that training, about how the dog has performed in that training; is that right?

Joseph R. Palmore: --Yes.

Those questions can be asked.

But I think it's critical, as Mr. Garre pointed out, that the courts not constitutionalize dog training methodologies or hold mini trials with expert witnesses on what makes for a successful dog training program.

Because, as Mr. Garre said, the Government has critical interests, life and death interests, that it stakes on the reliability of these dogs.

So the U.S. Marshals use dogs to protect Federal judges.

The Federal Protective Services use dogs to keep bombs out of Federal buildings.

The TSA uses dogs to keep bombs off of airplanes.

FEMA uses dogs to find survivors after hurricanes.

There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy.

So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable.

And I think the courts--

Chief Justice John G. Roberts: Do you -- I'm not sure it's relevant, but do dogs -- does their ability -- is it even across the board?

In other words, if you have a dog that's trained and good at sniffing out heroin, the same dog is going to be good at detecting a bomb, or is there some difference?

Joseph R. Palmore: --No, there -- well, I think any dog could be trained in either discipline.

And if you look at the Scientific Working Group on Detection Dogs report that we cite in our brief, the report explains that the same general methodologies and the same different -- same general approach is used to train each kinds of dogs.

But, typically, a drug detection dog will not be cross-trained on explosives.

Chief Justice John G. Roberts: So you don't know whether -- in other words, are dogs good at sniffing things, or are they -- can they be good at bombs, but not good at meth?

Joseph R. Palmore: Well, I don't know the specific answer to that.

I think once a dog kind of chooses a major, that's what they stick with.

But I think the important point is that--

Justice Antonin Scalia: You don't want coon dogs chasing squirrels.

Joseph R. Palmore: --Right.

But I think the important point is that these dogs have to meet -- have to pass proficiency in an initial training program, and then they, as is shown in the record here in great detail, they show proficiency on an ongoing basis, including in this case two days before the arrest.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Gifford.

ORAL ARGUMENT OF GLEN P. GIFFORD ON BEHALF OF THE RESPONDENT

Glen P. Gifford: Mr. Chief Justice, and may it please the Court:

There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search.

If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts.

This can encompass evidence of initial training, certification, maintenance training and performance in the field.

Justice Anthony Kennedy: Do you understand the government to disagree with that general position?

In other words, the trial court, if you have an attorney that's really concerned about the training of this dog, they can ask about it.

Glen P. Gifford: I do understand the government to disagree about the relevance of field performance.

And where I specifically think the government disagrees is on the level of detail that can be inquired into by the trial court on any of these elements.

Justice Stephen G. Breyer: I didn't think they disagreed about what he may do; I thought they disagreed about what he must do.

That is, the Florida supreme court said you must, da, da, da, da, da, and gave a whole list.

I thought that's what the case was about.

Glen P. Gifford: Well, the Florida supreme court did have several passages in its opinion where it talked about what the state must produce.

And at first glance, that looks rather didactic.

However, what I think the Florida supreme court was saying there was that if this -- these records exist, the state must produce them.

And that is consistent with the state's burden of proof to justify a warrantless search.

Justice Stephen G. Breyer: Well, that's a totally different matter.

Of course, I agree with you that a trial judge has control of the trial.

He's likely to know what's relevant.

In different circumstances, different matters will be, and he has first say on what you're going to go into.

It's the must.

And now you're on the point.

Why is that the right list?

I mean, what in the Constitution requires that list?

Glen P. Gifford: I don't believe the Constitution requires it, and I don't believe--

Justice Stephen G. Breyer: Doesn't the Supreme Court believes the Constitution requires it?

Glen P. Gifford: --No, I don't think so, even though they used the word must.

I think that the must concerns performance records and training records that exist.

Farther down in the opinion, the Court says reasons why the -- why the state should keep and present performance records--

Justice Stephen G. Breyer: But what--

Justice Ruth Bader Ginsburg: So if the state doesn't keep -- if the state doesn't keep any performance records, then there would be no field performance to show, but that doesn't mean the state loses; is that what you're saying?

The state doesn't keep performance records.

The Florida supreme court seems to say field performance records are required.

Glen P. Gifford: --If the state does not keep field performance records, that is a fact, that is a lack of evidence that could be held against the state in the suppression hearing.

And it shifts the focus onto providing evidence of the initial training, the certification, and the maintenance training that can show to the trial court that this is a reliable dog.

Justice Antonin Scalia: Now I thought the court said -- held against the state.

I thought what the Florida court was saying is if you didn't produce it, the dog's evidence would not be allowed--

Glen P. Gifford: They did use--

Justice Antonin Scalia: --the search is invalid.

Glen P. Gifford: --The court did use the word must--

Justice Antonin Scalia: Yes.

Glen P. Gifford: --but it's not -- it's not a specific recipe that can't be deviated from.

Because, in addition to listing the records that must be produced, the Florida supreme court also said, and all other evidence that bears on the reliability of the dog.

Justice Antonin Scalia: Even worse.

Glen P. Gifford: So it's not a specific recipe, and it's talking about what -- if these records exist, they must be produced.

Justice Ruth Bader Ginsburg: Are you conceding that the Florida supreme court, at least with respect to the field performance records, was wrong, that they -- it is not a Fourth Amendment requirement?

Glen P. Gifford: I don't think they -- I don't think they require field performance records to establish--

Justice Ruth Bader Ginsburg: But they outline what the government must prove, and that was one of them.

Glen P. Gifford: --They said what the government must produce if those records exist.

But when you go down to the part of the opinion where the court applies the law to the facts, the court didn't just say, because there were no field performance records, no probable cause, we close up shop, conviction reversed.

What the court did was take into consideration the lack of field performance records, the lack of any records about initial training and certification aside from the fact that this dog had a certificate.

And we have to remember that this certificate, not only was it 16 months out of date, it wasn't a certificate for Aldo.

It was a certificate for Aldo and a Seminole County deputy together as a team.

This dog was never certified as part of a team with Officer Wheetley in this case.

And the certifications in this area are team certifications, not individual certifications.

Justice Antonin Scalia: Is that a requirement too?

That's a constitutional requirement, that the dog training doesn't count unless it's training with the officer who is using the dog?

Glen P. Gifford: No, but that's an indicator of reliability, which is the ultimate test here, has this team been trained and certified together--

Justice Antonin Scalia: Well, fine.

counsel can bring that up.

Counsel can bring that up at the hearing before the judge.

But -- but I understood this to be a -- a requirement.

You never even get to that hearing, because there's no evidence that this dog was ever trained with this policeman.

Glen P. Gifford: --That's correct, there is no such evidence.

Justice Antonin Scalia: Yes, and therefore end of case, right?

Glen P. Gifford: No, not end of case.

The fact that the dog wasn't trained with this policeman means that you need to look for evidence -- other evidence of reliability, which also doesn't exist in this case.

Justice Antonin Scalia: Well--

Justice Ruth Bader Ginsburg: Doesn't this -- this officer has been working with this dog for many months.

They have training periods every week.

So why isn't that enough to show that this handler and this dog worked effectively as a team?

Glen P. Gifford: Well, first, this weekly training is maintenance training.

It's to maintain the dog at a level of proficiency that has previously been established.

That level of proficiency hadn't been established with this team of Wheetley and Aldo.

The level of proficiency that had been established was with Wheetley and with another Seminole County deputy.

Justice Antonin Scalia: --What -- what -- what are the -- what are the incentives here?

Why would a police department want to use an incompetent dog?

Is that any more likely than that a medical school would want to certify an incompetent doctor?

What -- what incentive is there for a police department?

Glen P. Gifford: The incentive is to acquire probable cause to search when it wouldn't otherwise -- otherwise be available.

Justice Antonin Scalia: And that's a good thing?

Glen P. Gifford: Is that a good thing?

Justice Antonin Scalia: I mean, you acquire probable cause, you go in and there's nothing there.

You've wasted the time of your police officers, you've wasted a lot of time.

Glen P. Gifford: And -- and you've invaded the privacy of an individual motorist who was innocent.

Justice Antonin Scalia: Well, maybe the police department doesn't care about that, but it certainly cares about wasting the time of its police officers in fruitless searches.

Glen P. Gifford: The incentive of the officer to be able to conduct a search when he doesn't otherwise have probable cause is a powerful incentive.

As the Court has said, ferreting out crime is a competitive enterprise.

And also, these--

Justice Antonin Scalia: Willy-nilly.

Officers just like to search.

They don't particularly want to search where they're likely to find something.

They just like to search.

So let's get dogs that, you know, smell drugs when there are no drugs.

You really think that that's what's going on here?

Glen P. Gifford: --Officers like to search so that they can get probable cause so that they can advance their career.

Forfeiture is also an issue.

Justice Antonin Scalia: They like to search where they're likely to find something, and that only exists when the dog is well trained.

It seems to me they have every incentive to train the dog well.

Glen P. Gifford: But the question goes back to the dog's reliability, what the officer knows objectively, and what that officer can demonstrate on the stand to the trial court to determine by the totality of the circumstances that that dog is well trained.

Chief Justice John G. Roberts: Getting back to -- I'm confused about the difference between must and is required.

What if the judge has before him or her a record, this is where the dog went to school and it's a bona fide school, this is where the dog was certified, he's trained every -- every, you know, couple of weeks or whatever it is, and the judge says, do you have any field records, and the officer says, no, and the drug says -- the judge says, well, then no probable cause.

That's reversible error, right?

Glen P. Gifford: It is reversible error if we know what went into the training and certification.

Was that training and certification sufficient to prove the dog was reliable?

Did it include the use of blanks and did the--

Chief Justice John G. Roberts: You have, I guess, experts testify about whether -- what constitutes a good training program.

Glen P. Gifford: --No, not necessarily experts, but simply the -- the officer who participated with the dog can testify as to what he and the dog went through to obtain the training certificate and the -- and the certification.

Justice Antonin Scalia: Oh, I assure you that if we agree with you there will be a whole body of experts that will spring into being about dog training.

I assure you that that will be the case.

Glen P. Gifford: Those experts already exist.

They -- they are prevalent in the case law already.

Justice Sonia Sotomayor: I understood the Florida supreme court, counselor, to say that the deficit in the training records here was because there was no evidence of false positives, that the reports didn't say, the training reports didn't say, if the dog was alerting falsely.

Assume that the record, as your adversary claimed, shows the opposite, that a satisfactory completion means that the dog detected drugs where they were.

What -- why wouldn't the training records here be adequate in that circumstance?

Glen P. Gifford: That would be one of several showings that would make the training records adequate.

Also, you would want to know whether there were distractors used in the field.

However, I don't believe that the record supports, except -- and this is arguable; the parties dispute this -- for the maintenance training.

All the State had for the initial training with Deputy Morris, not with Deputy Wheetley, was a certificate: One certificate that said this dog was trained by the Apopka Police Department for 120 hours with Deputy Morris; another certificate saying that this dog was certified by drug beat narcotics certifications, again with Deputy Morris, for 1 year.

Justice Sonia Sotomayor: I -- I guess what I'm asking you is, as a matter of law you want us to hold that training records are inadequate unless what?

Unless -- you're going to specify now a list of things they have to include?

Glen P. Gifford: No.

This Court in -- in a number of circumstances has provided examples that can guide a court in probable cause determinations.

In Illinois v. Gates, under the old Aguilar-Spinelli test, the Court specified where evidence on one prong can be so strong that it substitutes for evidence on another prong.

In Ornelas, the Court pointed to local knowledge that can be relied upon, such as the winter climate in Milwaukee.

Justice Antonin Scalia: But, counsel, you're defending a Florida supreme court opinion which says “ must ”.

You can't just say, you know, I'm not asserting any particular thing is necessary, just, you know, totality of the circumstances.

You have an opinion here in which the Florida supreme court says “ must ”.

It must include the, you know, the field training.

Now, do -- do you disavow that or -- or do you want us the ignore it?

What?

Glen P. Gifford: That is -- that is not the holding on which I'm relying here.

The holding on which I'm relying is that training and certification alone, the mere fact of training and certification alone, is not sufficient to establish the dog's reliability.

And as to the language about “ must ”, remember, the Florida supreme court didn't just say that the failure to produce one of these elements necessitated reversal.

It then went and engaged in a totality of the circumstances test.

And several lower courts applying that case, applying Harris, have reached the same conclusion.

In two of those cases--

Justice Antonin Scalia: But this is absent in the totality of the circumstances and you nonetheless hold that there was probable cause, then “ must ” does not mean “ must ”, right?

Glen P. Gifford: --“ Must ” means “ must ” if the State has the records.

If the records exist, then the State must produce them because it bears--

Justice Ruth Bader Ginsburg: That's not what the Florida supreme court said?

It listed, along with training, that the -- the provision of records of field performance.

Glen P. Gifford: --I read that as: If those records exist, the State must produce them, because not only does it bear the burden of proof; it's the only party that can produce these records because it keeps the dog.

Justice Ruth Bader Ginsburg: Suppose it's -- it's a dog that's just completed the training, training course, top-performing dog in the training program, but there's no field record.

Glen P. Gifford: If that -- if the training is sufficient, if it has those elements that demonstrate that the dog is reliable, those are the circumstances.

You have the totality of the circumstances there and those circumstances don't include any field performance.

And, yes, under that circumstance, a trial court can find the dog to be reliable.

Justice Samuel Alito: What is wrong with the State's argument that field performance records are not very probative because dogs detect odors, they don't detect the physical presence of the substance that created the odor, and therefore so-called false alerts, cases in which a search was performed and no contraband was found are not really cases of false alerts.

What's wrong with that?

Glen P. Gifford: Well, you don't know whether they're cases of false alerts or not, because the State will always point to the possibility of residual odor as a reason.

And we know from the studies that have been cited in the briefs that there are other reasons that dogs alert when that alert cannot be verified.

Handler cueing is identified as the chief one.

And simply dogs make mistakes.

Dogs err.

Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing.

Justice Samuel Alito: Well, that may all be true, but then what -- what can one infer from the fact that a dog alerted a number of times when no contraband was found?

I think what you just said was the explanation could be the dog detected an odor, but the substance wasn't there, or it could be that the dog was cued or the dog was confused or the dog is not very competent.

So what can one infer from these field performance records?

Glen P. Gifford: Well, what you can infer is this dog is not a very accurate indicator of probable cause, because probable cause tests whether drugs are likely to be found in a search that follows an alert.

If the dog's--

Justice Antonin Scalia: But they are likely to be found if there is a residual odor of drugs, even though the drugs are no longer there.

So it's not an incompetent dog when he alerts because of the residual odor.

Glen P. Gifford: --But if a dog has -- but if a dog has previously alerted and no drugs have been found because the dog's hyperacuity causes him to smell drugs that were there two days or two weeks ago, then the next time that dog alerts, it's less likely, the probability declines that drugs will be found.

It goes to what probable cause measures, rather than what the dog training and certification community measure, and that is, the likelihood, the reasonable probability, that drugs will be found following the search.

Justice Sonia Sotomayor: Counsel, how is that any different than a police officer who comes to a car and smells marijuana?

He's never going to know whether there is any more in the car or not.

It could have been smoked up an hour before.

I don't know how long marijuana lingers for, but -- I'm not sure why residual odor affects the reliability of the dog, which was Justice Scalia's point.

It's no different than an officer who smells something.

He doesn't actually know whether it's physically still present or not, but we're talking about probabilities.

Glen P. Gifford: That's correct.

And -- and the difference is that -- that the police officer can describe what he has smelled and can say, I smell marijuana.

All the dog tells the police officer is, I smell something I was trained to detect, perhaps, if I'm operating correctly.

But getting to this -- this issue of residual odor, our position is that an alert where no drugs are found means that the dog -- that -- it detracts from probable cause in that instance.

But that's not the only rule available to the court.

Residual odor, whether an alert was to residual odor and is therefore correct and accurate, is something that can be litigated.

In one of the lower courts that decided the case after the Florida supreme court, the court looked to the field performance records, and it found several of them well supported on the issue of whether the alert was probably to the odor of drugs; several it didn't find.

So that is an issue that can be litigated.

Another possibility is--

Justice Samuel Alito: Well, excuse me.

Where -- when nothing is found, how can you tell whether the dog alerted to a residual odor or simply made a mistake?

Now, there may be cases where there is other evidence that suggests that drugs were present in that location, and, therefore, that is something from which you can infer that the dog was alerting to residual odor; but, the fact that you don't have evidence of that doesn't mean that there wasn't residual odor.

Glen P. Gifford: --No, it doesn't mean that there wasn't residual odor.

But, again, you go back to what probable cause measures, I believe.

And the Florida supreme court didn't demand evidence of residual odor.

What it did is it said that if field performance records exist, then the state can explain unverified alerts in the field as residual odor, and then a court can then evaluate that.

Chief Justice John G. Roberts: What's the magic number?

What percentage of accurate alerts or inaccurate is enough for probable cause?

Glen P. Gifford: Well, this Court has always hesitated to assign percentages to probable cause; but, in the lower courts, once you get below 50 percent, probable cause is much less likely to be found, assuming that there is no other corroborative evidence, no other reasonable suspicion factors.

I'd like to talk briefly about the Oregon supreme court and what that court did in several cases.

Helzer and Foster decided in 2011, independently of the Florida supreme court decision, doesn't cite -- in Foster, the Oregon supreme court had a dog that trained initially with the same handler, unlike here, where the evidence was very strong as to the features of the training and certification program, and where that dog had, I believe, a 66 percent field performance record.

Now, the court in Foster said that the dog's reliability can be established by training, certification, and performance in the field.

The court added that it didn't think that performance in the field was the most reliable measure, but it's relevant, and the court considered that 66 percent percentage.

But then, on the same day, in Helzer, there was a dog that trained initially with a different handler, that the handler ultimately testified to very few details of the ongoing training and the certification.

In Foster, the certification was with an organization that required a 90 percent success rate.

In Helzer, there was no such testimony.

And this officer, like the officer here, didn't keep field performance records when the dog alerted and no drugs were found.

In Helzer, the court found that there was insufficient evidence of reliability.

And I believe that those two cases demonstrate what is a -- what is a correct line to draw in navigating what is reliable.

On several arguments made by the State, the argument was that the maintenance training included blanks, and that the dog did not alert to blanks.

The record, we believe, supports the Florida supreme court's conclusion that blanks were tested -- the dog was tested on blanks, but there was no testimony as to whether the dog didn't alert on those blanks.

The State has said that the dog was subsequently recertified.

I don't find support in the record for that.

At a suppression hearing, the State argued -- the officer testified that the dog was scheduled for another certification, but we don't know whether the dog was ever recertified.

The Court can affirm the Florida supreme court simply on the failure to produce adequate documentation of certification and initial training, and on the fact that this dog was never certified with this trainer -- with this handler and didn't initially work with this handler.

You don't have a dog here who was reliable enough to demonstrate probable cause.

The Florida supreme court so concluded.

I believe its conclusion was correct.

And unless there are additional questions.

Justice Ruth Bader Ginsburg: The alert -- the alert here could have been to residual odor, or it could have been to drugs inside the pickup truck.

If it's -- because the alert was in front of the -- a front door handle, is that -- so it -- it's equally likely that it -- that it was just residual odor or that there were drugs inside the pickup truck.

Can the police establish probable cause when what the dog alerted to may well have been residual odor and nothing inside?

The dog didn't alert anyplace other than the door handle, is that.

Glen P. Gifford: --It can constitute probable cause.

What Officer Wheetley testified to in this case was he believed that this alert was to residual odor on the door handle--

Justice Anthony Kennedy: Excuse me.

Did you say it can or it can't?

Glen P. Gifford: --It may.

It may.

It can constitute probable cause in this case.

Officer Wheetley testified that this dog alerted to the door handle.

And in his prior experience, when the dog alerts to the door handle, it means that someone who had smoked or consumed drugs or handled drugs had touched the door handle.

Now, if Officer Wheetley had testified that in his experience when he'd seen such alerts and conducted a search, drugs were found inside the vehicle, then that residual odor alert would support probable cause.

Officer Wheetley did not so testify.

There was insufficient evidence that this residual odor alert -- that a residual odor alert of this nature, without finding drugs afterward, supports probable cause.

Justice Antonin Scalia: But at least we don't have to worry about mothballs in this case; is that right?

There are no mothballs?

[Laughter]

Glen P. Gifford: No.

No mothballs to my knowledge.

No, Your Honor.

Justice Samuel Alito: Was that the holding in the Florida supreme court, that there was no probable cause because the dog alerted to the wrong part of the truck?

Glen P. Gifford: No, Your Honor.

Justice Samuel Alito: Was it any part of their reasoning?

Glen P. Gifford: They were concerned about residual odor alerting without any explanation by the State as to how residual odor alerting supports probable cause.

But the primary basis for its decision was the lack of performance records and the lack of records supporting initial training and certification to show that this dog was reliable.

Justice Ruth Bader Ginsburg: --And if we think they were wrong in that respect, I suppose that you would say the Court shouldn't reverse, but should vacate and remand because the question did alert him to the door handle, was that enough?

Was that enough to establish probable cause that there were drugs in the vehicle?

Glen P. Gifford: Well, I don't think the door handle itself is -- is dispositive.

I think it's the door handle plus the lack of evidence that we have a reliable dog.

And, again, the reason you need a reliable dog, evidence on what training and certification means, is that there are no standards, no standards whatsoever for initial training.

Some states do have standards for training and certification.

Florida does not.

And no standards for -- for maintenance training as well.

In order to have probable cause, you have to know what that certification, what that training means, if you don't have standards that will tell that for you.

If there are no additional questions, I'll conclude.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Garre, you have 3 minutes.

REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER

Gregory G. Garre: Thank you, Your Honor.

First, probable cause in this Court's precedents looks not only to the likelihood that contraband would be present, but the likelihood that there would be evidence of a crime.

And that would include the so-called residual odor, evidence that drug paraphernalia, someone had recently smoked illegal narcotics in the vehicle, or the like.

So the alert to the so-called residual odor of drugs is just as probative to the question of probable cause as an alert to drugs themselves.

The fact that Aldo alerted to the door handle area of the car doesn't negate in any way the probable cause that Officer Wheetley had to search.

What it means is that the door handle area was where the scent of the illegal narcotics was the strongest.

It could have been narcotics coming out of that area, or coming out of the door seam, or could have been the fact that someone who had used narcotics was using the door handle to get in and out of the car.

Second, courts can determine reliability in this context.

They would look to the performance in the controlled training environment.

There is a real danger with suggesting that field performance records are -- are a permissible foray for defendants in suppression hearings to challenge the reliability of dogs because, one, as Justice Alito pointed out, it's not a controlled setting.

We don't know whether the dog did alert to residual odors of narcotics that had been in the car, drugs that were hidden and simply not found during the relatively--

Justice Antonin Scalia: Would you -- would you allow counsel to ask about that?

Gregory G. Garre: --I think they could ask about it, Your Honor.

I don't think they could demand the performance records themselves.

And that would be a huge deterrent to law enforcement, even maintaining those records.

Third, Officer Wheetley and Aldo did train together for nearly a year before the search in question.

They did complete the 40-hour drug detection seminar at the Dothan, Alabama, police department.

And that certificate's at page 105 of the record.

And second, as Justice Scalia pointed out, all the incentives in this area are aligned with ensuring the reliability of drug detection dogs.

It's not in the police interest to have a dog that is inaccurate in finding contraband or that is inaccurate and putting an officer in harm's way.

Humans have relied upon dogs for law enforcement-related purposes, due to their extraordinary sense of smell, for centuries.

Dogs, trained drug detection dogs and explosive detection dogs, are invaluable members of the law enforcement community today.

We would ask the Court to reverse the decision below, which would act as a serious detriment to the use of that valuable tool.

Chief Justice John G. Roberts: Thank you, counsel.

Gregory G. Garre: Thank you, Your Honor.

Chief Justice John G. Roberts: The case is submitted.

Featured:

Brigham City, Utah v. Stuart - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Brigham City, Utah v. Stuart

Media File:

05-502_20060424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey S. Gray

Chief Justice Roberts: We'll hear argument first today in Brigham City, Utah v. Stuart.

Mr. Gray.

Mr. Gray: Mr. Chief Justice, and may it please the Court--

In cases involving safety exigencies, an officer's actions should be judged against a single objective standard of reasonableness, that is, whether the facts and circumstances known to the officers at the time of entry would warrant a reasonable person in believing that immediate intervention is needed to preserve the peace and protect others from harm.

When officers have reason to believe that violence is imminent or ongoing, they meet that standard.

In this case, the Brigham City officers responded to a complaint at 3:00 a.m. and, upon arriving, witnessed a violent and tumultuous struggle between four adults and a teenager.

The officers... when the juvenile threw a punch is when the officers acted and thereby prevented injury.

This is exactly what we would expect officers to do.

Justice Scalia: What were they doing in the yard anyway?

This sort of occurred to me.

They couldn't have seen that until they went into the fenced back yard violating the curtilage of the property.

How... was that justified?

Mr. Gray: Yes, it was justified.

At that time what they heard from the curb side and then from the front was the same kind of violence going on.

They heard that from... from the time they arrived all the way.

They... they heard the thumping, the shouting, someone saying, get off me, stop, stop.

And so what these officers were doing, in the course of that, is investigating that... that, and it led them to the back yard.

Now--

Justice Scalia: Is any less required to... to go into the curtilage than is required to go into the house?

Mr. Gray: --No.

Justice Scalia: No.

It's the same test?

Mr. Gray: Yes.

And again, that was--

Justice Scalia: So you say that even if he didn't see him throw the punch and... and draw blood, they could have gone in just because they heard somebody say, stop, stop, get off me?

Mr. Gray: --It's our position that they could have, though that's a much closer case.

In this case, the officers acted in a very guarded manner.

I mean, they... they proceeded and they investigated step by step and, in fact, did not enter until a punch was thrown and there was--

Justice Souter: So what... what you're saying is they've got to have a reasonable ground to take the first step.

That may not be a reasonable ground to have taken the second step right then and there, but it's the same reasonableness standard.

Mr. Gray: --Yes, it is.

Justice Souter: That's... that's--

Mr. Gray: Yes.

Justice Ginsburg: One thing that was left out of the succession of acts... Utah provides for telephone warrants, and there was no attempt to do that.

Once they checked to... to determine that there was probable cause to enter, they could have called for a warrant, but they didn't.

Is there a reason why they didn't?

Mr. Gray: Yes.

The reason is where there's a violent situation, things can change in seconds.

I mean, it can turn deadly in seconds.

They don't have time.

Even though a telephonic warrant would certainly be a more speedy process of getting a warrant, it's not speedy enough where punches are being thrown.

I mean, it can turn deadly, one blow could give someone a concussion or even rupture a spleen.

Justice Scalia: Well, you don't... you don't really mean that if they saw somebody inside with a gun and they heard him saying, I'm going to shoot you in 2 minutes, since they could have gotten a telephone warrant, they would have to had to get a telephone warrant?

Mr. Gray: No, not at all.

Justice Scalia: I mean, you... you don't want the... the telephone warrant requirement to... to up the ante on... on what it takes to... for the police to go in without a warrant, do you?

Mr. Gray: No.

In fact, precisely for that reason, the officers would not need a telephonic warrant in that situation no more than they would need a telephonic warrant in this situation.

Time is of the essence.

Violence--

Justice Scalia: But it wouldn't be of the essence if you know you have 2 minutes.

I'm going to kill you in 2 minutes.

Mr. Gray: --Well, that... that's--

Justice Scalia: Do you really want the policeman to say I got 2 minutes, you know, dial in and get a warrant?

That's ridiculous.

[Laughter]

Mr. Gray: --That... that would be assuming... that would be assuming that you could take someone who is threatening in that manner at his word.

I don't think that's something the officers could... could afford to do.

Justice Ginsburg: Are the police instructed... the city police instructed about when the telephone warrant procedure is appropriate?

Mr. Gray: That I... I do not know.

I assume so.

They have procedures in place, but that I do not know.

Justice Alito: When you speak about a violent situation, would that be limited... would that apply here just because a punch was thrown, or would it be enough that the officers saw some men restraining the young man, or would it be enough if there were violent words being exchanged?

Mr. Gray: With... with violent words, generally not, though if it's accompanied with a show of immediate force or violence, then yes, in that situation.

In this situation, I believe that officers could have entered prior to the punch being thrown.

What they witnessed is... is this violent struggle between four adults and a teenager.

They had no idea whether or not they were trying to molest the... the teenager or whether the teenager was an intruder or what happened.

But they could tell that it was violent.

They knew that alcohol was involved based on the circumstances as they approached.

Justice Kennedy: Did they know that minors were involved?

The record doesn't show that, at least in the preliminary direct exam of the officers.

Mr. Gray: That minors were involved?

Justice Kennedy: Yes.

I mean, they knew that once they got into the back yard.

Did they know before they got into the back yard?

Mr. Gray: They knew that minors--

Justice Kennedy: Or did they just know that minors stay up late at night?

Mr. Gray: --They knew that minors were in the back yard.

They... they witnessed the two juveniles.

They did not know that--

Justice Kennedy: But that's after they went into the back yard.

Mr. Gray: --No.

They saw that from the driveway, through the... the slit... slit... slats in the fence.

Justice Kennedy: They could see that they were minors.

Mr. Gray: Yes, yes.

Chief Justice Roberts: How much... you've been focusing on the violence because of the punch being thrown, but I gather they were called originally because of concern about the noise and disturbance of the peace and all that.

Mr. Gray: Yes.

Chief Justice Roberts: Is that a sufficient basis for them to have gone into the back yard and proceed from there?

Mr. Gray: Well--

Chief Justice Roberts: They're just shouting.

There are five people in the house shouting.

It's 3:00 in the morning or whatever.

Is that... is that enough?

Mr. Gray: --Probably not, certainly not where the State is... where the State offers as... as the proffered justification safety, it would not be enough.

That would be a different justification for their actions.

Certainly where they're disturbing the neighbors, we would argue that the expectation of privacy had diminished in that home because of that disturbance.

But again, where the State... or where the city is offering as a justification safety, that would not be sufficient to go in.

Justice Souter: --No, but if... if the... if the complaint were... were simply a complaint of noise, and they got to the... the gate, the back fence, and they could hear all the racket inside and there didn't seem to be any practical way to get people to come to the fence to talk to them, wouldn't they have had the right to go through the gate and at least go up to the door and bang on the door?

Mr. Gray: Yes.

Justice Souter: So they could have gotten through the curtilage.

They could at least have gotten to the back door based entirely on noise.

Mr. Gray: Yes.

Justice Souter: Okay.

Mr. Gray: Yes.

Justice Scalia: Except that there was a front door, which they approached first.

As I recall, they left one of the officers in the front.

Mr. Gray: Yes.

Justice Scalia: So they could have banged on the front door.

Mr. Gray: They... they could have, though the evidence was that... and the trial court found that it was so loud and tumultuous that nobody would have heard it or probably would not have heard it.

Justice Stevens: But I'm a little puzzled.

If the noise is the cause of their being there and if the noise is so loud at 3:00 in the morning that it's still continuing and nobody can hear the knock on the door... they knock on the door several times and shout... would they not have the right to go in then to quell the noise?

Mr. Gray: Absolutely.

All that I am maintaining is that they would not be justified under a safety exigency to go in.

Certainly to... as far as disturbing the peace, then yes, but not where the proffered justification is safety.

Justice Stevens: So if you're going to rely on the safety and the... safety and the danger of harm, how serious does the harm have to be?

And I use the word harm as defining the... the threshold for this kind of entry.

What if a father was spanking is child, for example?

Mr. Gray: No.

Spanking of a child would not.

There's no indication under most circumstances of an intent to injure or abuse.

Now, of course, if there are circumstances that would suggest abuse, then officers could go in.

Chief Justice Roberts: Doesn't yelling so loudly you can't hear police knock at the door at 3:00 in the morning suggest that violence is at least imminent or may well be associated with what they're hearing?

Mr. Gray: It certainly approaches that, but again, what we would maintain is there probably has to be more than simple shouting.

If... if it's accompanied by threats or a show of force or violence, then certainly they could go in.

Justice Scalia: Is there, in addition to the safety rationale which you're... justification, which you're arguing here... is there a justification to go in to stop an ongoing felony whether safety is involved or not?

Mr. Gray: Yes.

Justice Scalia: Is... is that a separate--

Mr. Gray: Yes.

That--

Justice Scalia: --I mean, you see a guy turning out counterfeit dollar bills, $100 bills, and can you go in right away if you see him doing that?

Mr. Gray: --Well, it's a crime ongoing, in progress.

So there certainly could be made an argument.

Now, whether or not there's an exigency, I think that's doubtful because police could secure the scene and secure a warrant and then execute that warrant.

Justice Scalia: Well, I mean, but if that's the case, you have a much easier argument.

Wasn't there an assault here?

There was clearly an assault.

Mr. Gray: Yes, and certainly where officers have reason to believe that there's an ongoing assault, officers can enter.

Now, one of the problems with the Utah Supreme Court's holding in this case--

Justice Ginsburg: In connection with the answer you just gave, it doesn't matter then?

If it's an ongoing crime, they can go in?

It doesn't matter whether it would be a misdemeanor or a felony?

It doesn't matter how grave the crime is?

Mr. Gray: --Well, this Court in Welsh indicated that minor offenses... you couldn't rely on the exigent circumstances exception, or at least it is what it suggested.

But certainly an assault, under Utah law, is a class B misdemeanor, punishable by up to 6 months in jail, and that's certainly of sufficient gravity to justify officers entering.

Chief Justice Roberts: Any kind of assault.

I gather it's an assault if you're just sort of a couple of guys pushing each other back and forth.

Mr. Gray: Well, under Utah law, an assault is defined as unlawful force or violence so as to... with an intent to do bodily injury.

Now, pushing... there's not that there.

Now, one of the chief problems or primary problems with the Utah court's decision in this case is it creates a complicated and confusing bifurcated standard that forces officers unrealistically to choose between roles, to choose whether or not they are going to enter and act as caretakers or enter and act as law enforcement officials.

Well, the reality... first of all, it's... it's very difficult for officers to try to make those kind of judgments in the heat of the moment, and this is precisely the kind of a... the kind of case where that would be impossible to achieve because officers in this case are acting clearly under both roles.

They're stopping crime and they are also protecting others from harm.

We want officers to rescue people from harm when they have a reasonable basis to do it, not wait until you have to call an EMT.

That's what Mincey provides.

And if there are no further questions, I would reserve the remainder of my time.

Justice Stevens: Let me just ask this one question, if I may, if you have... did the other side preserve the right to challenge this entry under the Utah constitution?

Mr. Gray: No, they did not, and... and the Utah Supreme Court recognized that.

Argument of Paul J. Mcnulty

Chief Justice Roberts: Thank you, counsel.

General McNulty.

Mr. Mcnulty: Thank you, Mr. Chief Justice, may it please the Court--

The Fourth Amendment does not require police officers to stand by and be a spectator to escalating violence in the home when such an officer has an objectively reasonable basis to believe, given the totality of the circumstances, that prompt action is necessary to prevent imminent harm.

Chief Justice Roberts: So if there were no punch in this case, would they have had a sufficient basis?

3:00 in the morning, loud shouting.

Can they conclude, based on their experience, that's likely to escalate into violence and enter on that basis?

Mr. Mcnulty: Yes, Mr. Chief Justice.

In these facts, the Government suggests they would.

The... under the Fourth Amendment, a police officer may enter a residence--

Justice Kennedy: Well, that's just because it's loud?

Suppose they were just singing and laughing?

Mr. Mcnulty: --Well, it would depend on... if... if words are going to be the key--

Justice Scalia: One thing leads to another.

Right?

Mr. Mcnulty: --Well, that's correct.

It depends upon, of course, what those words are.

It's really a combination of the words and the context of the words.

Here you have--

Justice Kennedy: So there has to be some indication of the likelihood of escalation into violence?

Mr. Mcnulty: --Correct, Your Honor.

That's... that's--

Justice Stevens: Well, why?

What if they're just so loud that it's perfectly obvious they're keeping... getting... the neighbors are awake and disturbed by it.

Does it have to be a threat of violence?

Mr. Mcnulty: --Well, Your Honor, if there's a loud noise alone, certainly the neighborhood shouldn't have to be a hostage to that noise, and the police officers may be acting reasonably to do what is necessary to end that noise.

But it's going to--

Justice Stevens: So then it doesn't matter what's being said.

Justice Kennedy: So then it does matter.

Mr. Mcnulty: --But the... what's being said may determine... may determine... whether or not entry is necessary to respond to an imminent threat where a prompt response is critical.

Justice Stevens: It may determine what is necessary to prevent harm, but what if it's not necessary to prevent harm, just necessary to prevent noise?

Mr. Mcnulty: Then it may still be reasonable.

It may still be reasonable, Your Honor.

Justice Stevens: It seems to me the harm inquiry in this case is, you know, sort of superfluous.

We don't even have to look at that.

Mr. Mcnulty: I agree, Your Honor.

It may be that the... the noise alone could justify the circumstance.

Certainly we wouldn't want a test that excluded words only--

Justice Scalia: Well, no.

You... you don't want to say that.

The noise alone wouldn't justify going in without knocking as would the... a scene of a violent event occurring.

Certainly you'd have to knock on the door.

Now, if they didn't hear you and the only way to get their attention to stop the noise is to go in, fine, but wouldn't you have to knock on the door real hard before you went in to stop the noise?

Mr. Mcnulty: --Justice Scalia, in most cases a knock on the door would... would be appropriate thing to do.

Justice Scalia: Not appropriate.

Necessary.

Justice Kennedy: Necessary.

Mr. Mcnulty: Well, it may very well be necessary depending upon the totality of the circumstances.

Justice Scalia: I hope so.

I mean... people--

Justice Stevens: Yes, but we've got a case in which knocking on the... the noise is so loud nobody can hear the knock.

Mr. Mcnulty: That's why a knock on the door may not always be the right thing to do.

In some cases it could be a futile gesture.

In this case, the police announced themselves and were not heard because of that tumultuous--

Justice Stevens: And they did knock on the door, yes.

Mr. Mcnulty: --They entered and announced their presence, and they were not heard when they did that.

So the knock is... is normally the appropriate course, but in certain circumstances, the knock may either be futile, it could be dangerous, depending upon what was happening, and it certainly could waste some time if it was a dire emergency.

The... under the Fourth Amendment, a police officer may enter a residence without a warrant when a reasonable officer could conclude, given again all the circumstances, that an impending threat to life or safety justifies immediate intervention and the scope of the intrusion is reasonable in relation to the nature of the emergency.

Whether the officer was subjectively motivated to enforce the law or render aid has no relevance in a constitutional inquiry.

Volatile situations involving violence in the home can escalate in... in seconds, and the on the scene, split second judgment about exactly when the police officers should intervene is precisely what the totality of the circumstances test has long addressed and resolves the balance of the Fourth Amendment values.

And this Court's recent decision in Georgia v. Randolph contains a clear expression of concern for the need for the police to take prompt action to prevent harm in domestic violence cases.

In this case--

Justice Ginsburg: This wasn't... this wasn't a domestic violence case.

It wasn't anybody inside calling the police and crying, danger, rescue me.

It was an outsider who complained about the noise.

So I am wondering why you are emphasizing the prevent somebody from being hurt instead of they're disturbing the peace and the police have a right to protect the neighborhood.

It seems to me that that's an easier argument to make.

Mr. Mcnulty: --It is, Justice Ginsburg, to look at the... the threat to the quiet of the community as one aspect of this.

But the case contains even more.

The case contains a punch that did some harm to another person in a kitchen setting where there is a strong possibility of escalating violence.

It's the additional facts of that violence that was a potential there, added to the noise and the evidence of underage drinking, that made the totality of the circumstances objectively reasonable for the officers to--

Chief Justice Roberts: Well, counsel, let's suppose you have a police officer who knows there's evidence in this house, but he doesn't have probable cause to get a warrant.

And he also knows that the family is going to be reenacting the murder scene from some movie as part of the family reunion.

And so he's there just at the time where the... in the scene the one guy says, and now I'm going to kill you with this knife, and he says, ah, and he goes in.

Now, subjectively we know that he has no basis for fearing violence, but a reasonable officer on the scene, hearing somebody say I'm going to kill you with this knife, would have a basis for entering.

So under your test, is that entry permissible or not?

Mr. Mcnulty: --Permissible, Mr. Chief Justice.

Chief Justice Roberts: Really.

Mr. Mcnulty: Because there the officer is unaware of the fact based upon the... as I understood the facts presented, unaware of the fact that that is not--

Chief Justice Roberts: Oh, no.

He knows.

He heard this is what they do at the family reunion.

They always reenact this.

[Laughter]

So he knows that there's no... well, but that's the difference here between looking at the subjective motivation or what an objective, you know, officer would understand.

Mr. Mcnulty: --If the officer has specific information--

Chief Justice Roberts: Right.

Mr. Mcnulty: --a fact knowing that this is not truly an imminent threat or necessary to prompt a quick response, then that would be a fact in the totality of the circumstances that wouldn't justify.

But, on the other hand--

Justice Souter: So you're saying the objective... the... the objective officer always knows at least as much as the officers actually know.

Justice Scalia: --A good way to put it.

Mr. Mcnulty: --The... the officer knows--

Justice Souter: Isn't... isn't that your standard?

Mr. Mcnulty: --Well, if... I'm not sure if I understand the question.

Would you please repeat it?

Justice Souter: Yes.

I... I thought you were getting to the point of saying that on the objective test that you urge, the officer... the objective police officer who sets the standard is deemed to know at least as much as the officer on the scene actually knows.

In other words, we don't exclude information--

Mr. Mcnulty: Right.

Justice Souter: --from our objective test when the officer actually has that information.

Mr. Mcnulty: That's correct.

Justice Souter: Okay.

Mr. Mcnulty: What makes it difficult at times is that you often have two officers.

One may know something, another may not know it.

And that's why objective information is--

Justice Scalia: Except I... I don't think we look to whether he knew that this was a family reenactment.

I think we look to the facts that he had... that had come to his attention which caused him to believe that this was a family reenactment.

I mean, you know, if he had read it in a newspaper or something else.

The facts are... are what matter and not--

Mr. Mcnulty: --Thank you, Justice Scalia.

That's... I agree that that is going to... even what the officer believes he knows may be subject to error, and therefore, the objective test pulls us out of this question of knowing the officer's mind and allows us to look at the totality of the circumstances, what really was occurring and determine whether or not the reasonable officer would be able to enter constitutionally under those circumstances.

And here again is the... a situation where there was mounting evidence, and the court in Utah wanted to make the motivation of the officer a significant factor in determining whether or not the officer could enter.

Specifically, the court looked to the motive or intent of the officer to render aid as one way to analyze the situation.

And the government argued that those distinctions... or the distinction between rendering aid or entering for a law enforcement purpose is really a... an unnecessary distinction because the officer, as the counsel for the State has argued, is acting in a split second situation, seeking... thank you very much, Mr. Chief Justice.

Argument of Michael Patrick Studebaker

Chief Justice Roberts: Thank you, General.

Mr. Studebaker, we'll hear now from you.

Mr. Studebaker: Mr. Chief Justice, and may it please the Court--

There's two bases or two exceptions which would allow somebody to enter into somebody's home, which are before the Court today, one being the emergency aid exception to the warrant requirement, the other one being exigent circumstances requirements for the warrant.

Under the facts of this case, neither one of those situations apply.

Under exigent circumstances, there has to be probable cause to enter, and there has to be a warrant to enter.

And if neither one of those... actually under exigent circumstances, there has to be probable cause and there has to be the requirement that there be imminent danger basically to evidence or to the person.

And there's not exigent circumstances, and the officers have an obligation to obtain a warrant based upon probable cause to enter the home.

Justice Souter: What... what--

Justice Ginsburg: I thought that probable cause was conceded, and I thought that the Utah courts didn't question that there was probable cause.

Mr. Studebaker: Your Honor, the... what happened was that the Utah courts found that the probable cause was there for the emergency aid exception, but I believe under the exigent circumstances requirement... or the exception, that probable cause was not there to get out... or actually to get into the home on the situations.

But even if probable cause is conceded, the fact is that the facts of the case don't rise to the level of requiring such as immediate entry into a home to bypass the warrant requirement.

Justice Souter: --May... may I just get back to your general statement?

Do I understand you to say that if they arrived on the scene and, you know, a really wild party was going on at 3:00 a.m., they knock at the door, nobody answers the door, they can't hear it for all the screaming and the music and so on, that under those circumstances, the police could not go in to... to quiet things down?

Mr. Studebaker: Correct, Your Honor.

They would actually have to go out and get a warrant to enter the home.

There's not an exigent circumstances under the facts that you presented which would require them to enter the home and bypass the warrant requirement.

It's not severe enough under those facts.

Justice Alito: Let's say they... they see a fight going on.

What kind of calculation do you think has to go on in the mind of the officer?

They have to think, well, let me look at these people.

Do they look like they're... they're strong enough to really hurt each other?

How likely is it that they're going to grab some object that's lying around, a knife, a baseball bat, or something, and... and escalate the violence?

What... what sort of thought process do you think a reasonable officer is supposed to go through in that situation?

Mr. Studebaker: Justice Alito, what the officer is required to do is to weigh the totality of the circumstances and make a decision based upon the totality of what they see.

And unfortunately, these situations are always fact intensive based upon what's seen on the scene.

And in the case presented here before the Court, none of those facts are presented that... that would actually weigh and that was going to escalate into that type of situation.

The officers actually had personal, firsthand knowledge of the events that were happening.

They stood outside the home.

They watched the event transpire through the window.

The exigency was over when the officer entered the home.

Justice Breyer: Why can't you?

Is there any case or anything that says you don't look at the whole circumstance to decide if it was reasonable to enter?

I mean, suppose I just wrote an opinion, for a hypothetical's sake, that says, look, there was so much noise at 3:00 in the morning nobody could even hear a knock and he looks in the window, sees one of the... a kid there being held, who's obviously been drinking under age.

He takes a swing at somebody else and pokes him in the nose and blood starts to run or... and under those circumstances, of course, it was reasonable to go in.

End of the matter.

Mr. Studebaker: Except for the fact, Your Honor, I mean, the... the situation we have is that is... it would depend on whether it's an ongoing situation or not.

And in the facts presented here, it wasn't an ongoing situation.

It ended and then the officer--

Justice Breyer: You mean... you mean the noise stopped?

Mr. Studebaker: --It... shortly after the smacking in the face by the juvenile, Your Honor, the officer entered the home, and by his testimony, it abated right after he entered the home.

Justice Breyer: No.

The question is whether he could go into the house, and are you saying that before he went into the house, all the noise stopped?

Mr. Studebaker: It had not stopped.

No, it had not, Your Honor.

Justice Breyer: Okay.

So my question... I'm interested in the law of it.

Why can't I... what's... what... the... the Constitution says reasonable or unreasonable, forbids an unreasonable entry, search.

So this doesn't seem unreasonable.

A policeman isn't a lawyer.

He just has to do what's reasonable in the circumstance.

It's a huge... well, I would be repeating myself.

But what I want to know is what in the law makes that opinion wrong?

Mr. Studebaker: Your Honor, what makes that opinion wrong, based upon the facts that were presented, is the fact that the... there was no warrant achieved in the situation.

If the officer is entering under exigent circumstances--

Justice Breyer: And there are two reasons why he didn't want to go get a warrant.

It would take about half an hour, at which time all the neighbors are awake, and they have to lose an hour of sleep.

And in addition to that, the underage drinking will continue for another half an hour or an hour.

And in addition to that, somebody else might get poked in the nose.

So those are the reasons why... or worse.

So those are the reasons why he thought it was reasonable to go in.

Mr. Studebaker: --That may be what he thought, not the officer--

Justice Breyer: Those are the reasons why it was reasonable to go in.

Mr. Studebaker: --Yes, Your Honor.

Justice Breyer: Now, what's wrong with that opinion?

Mr. Studebaker: What's wrong with the opinion, Your Honor, is it still requires a warrant under the situation.

Justice Breyer: Now, suppose I were to say at the end of that it doesn't require a warrant because it was not unreasonable objectively to go in under those circumstances.

What I'm looking for you to do is to tell me why.

Mr. Studebaker: Your Honor, the... if they're going to enter the home, there has to be, obviously, a serious situation that's going to arise.

And so with the... the presentation which you presented, it's not serious enough to require the sidestepping of a warrant in the situation.

Justice Scalia: Mr. Studebaker, I'm not sure that even the noise wasn't enough to justify what the police did here.

As... as I recall, they... before they went in, they... they heard all this noise and they saw the punch.

They pushed open the screen door and announced that they were the police.

Okay?

Mr. Studebaker: Yes.

Justice Scalia: And then only went in when nobody heard them.

Then they shouted even louder, police.

I'm not sure that... that just the noise wouldn't be enough to allow that.

If you can't hear the policeman from the door, who's coming to check about a 3:00 a.m. noisy party, you don't hear his knock on the door, can the policeman not open the door and shout, police?

Is that an unreasonable search and seizure.

And then if you don't hear that, can he take two steps into the house?

He's... he's not looking under the carpets.

He's not looking in the desk drawers.

He's just shouting police so that he can bring to the attention of the people there the fact that there's been a complaint from the neighbors and you have to knock off the noise.

I... I would think that's perfectly reasonable.

Never mind the punch in the nose.

Mr. Studebaker: Justice Scalia, and you asked whether I thought it was reasonable or not, and I would say it's not.

The... the... to bypass that warrant requirement, to enter the home under an exigent circumstances, which is what they were there for, it's got to be more serious than a... a loud party, the situation.

And ironically, the... the testimony of the officer, which I guess there was a dispute about whether that was there or not because it's not specifically in the findings that the trial judge made or the two appellate courts ruled on... but if the officer entered the home and shortly after that, I mean, he opened the door, according to his testimony, and announced, basically raised his voice, and they heard him, why cannot he have done that outside the home?

And that's the situation.

This wasn't a serious enough situation that he couldn't have made the effort to make his presence known outside.

Justice Scalia: They didn't hear him when he... when he just opened the screen door.

He had to step in a few more... a few more steps.

Then they finally heard him.

That's his... the way I understand these facts.

Mr. Studebaker: And, Justice Scalia, he also had to raise his voice, and our contention--

Justice Scalia: Of course, he had to raise his voice.

I mean, there was a lot of noise going.

It just seems to me so unreasonable, when a policeman comes to tell people they're making too much noise and the neighbors have complained, that he can't do the minimum that's necessary to get their attention so he can tell them that.

He has to go get a warrant to tell them that the neighbors are complaining about too much noise?

That just seems absurd.

Mr. Studebaker: --Yes, Your Honor, he would have to get a warrant.

And... and the requirement--

Justice Breyer: Does it say that in a case somewhere, or is that just your opinion?

Mr. Studebaker: --It's my opinion, Your Honor.

Justice Breyer: All right.

Now, what I would like to know is what does it say in a case because I... I agree, at 3:00 in the morning, it might not appear to many people to be unreasonable when the party is so loud that no one can sleep, that they have to take an extra hour or half an hour or 40 minutes to just tell the people inside the house, knock it off.

Now, is there a case somewhere that says... I guess, we could take a poll or something, but is there a case that casts some light on this?

Mr. Studebaker: Your Honor, I believe Mincey itself requires the... the seriousness of the offense be evaluated, and further--

Justice Breyer: Which case?

Mr. Studebaker: --Mincey v. Arizona.

Justice Breyer: Was that involving a... is that in this Court?

Yes?

Mr. Studebaker: Yes.

Justice Breyer: And was that involving a party or noise, or what was it involving?

Mr. Studebaker: No, it was not involving a party or noise.

Justice Kennedy: No.

It involved... it involved a homicide, but there, the search in question took place after the premises... after the entry, after the premises were secured.

The entry was never in question in Mincey.

Mr. Studebaker: Correct.

Justice Kennedy: What was in question was the search after the premises had been secured.

Mr. Studebaker: Correct, and--

Justice Kennedy: And I don't see how that helps you because here, in the course of securing the... the premises, they had all... all the evidence they needed.

Mr. Studebaker: --And... and to answer the Court's question, there is nothing that I'm aware of where this Court has come out and said that a party is--

Justice Kennedy: So Mincey doesn't help.

Mr. Studebaker: --Correct.

And so we--

Justice Breyer: I mean, I wouldn't want this to be the party case.

This also involves violence and it also involves underage drinking and all three are there together.

But I guess a policeman, where he sees or hears or knows a crime is going on, can take steps to try to stop it so that it doesn't have to continue.

And is there any case that says it depends on how serious a crime?

Is there a case that says if it's a sort of minor crime, like a disturbance of the peace, you have to permit it to continue, but if it's a major crime like homicide, you don't have to?

Mr. Studebaker: --I don't believe there's anything that specifically says that, Your Honor.

No.

But there are cases out there that say that under the exigent circumstances, it's got to be a serious situation, and the question then becomes is... is the situation... is the party... is the loud noise complaint serious enough to warrant entering into the home.

And no, we would say it's not, Your Honor.

It doesn't rise to that level, especially considering the fact that the exigency that the officers relied upon, the smack... and it was over.

The situation was already under control.

Justice Souter: Well, it was... it was over until somebody threw the next punch.

They don't know what's going to happen the next.

The kid broke away from the four people who were trying to restrain him once.

Presumably he might be able to do it again.

Maybe one of the four who were restraining him might come up with the idea that the best way to stop him from throwing another punch was to throw one at him.

The... the police cannot make... it seems to me on the facts in... in this record, could... could not reasonably draw the assumption that there was no risk of further violence.

Am I going wrong somewhere?

Mr. Studebaker: Not completely, Justice Souter.

But we do have a situation where only he broke free from one of the adults, not three of the adults.

He was still under control in this situation.

And he had gotten his hand free and smacked one of the other adults, the one who was the victim in this situation.

So the officers... unlike some situations where they're called out and they wander on a situation, the officers in this case had personal knowledge of what was going on.

They stood outside the home and watched the event transpire.

And so they really need to wait and observe what's going to happen and wait till the last second before they need to go in.

In this situation, there was nothing that would demonstrate in the facts that it was going to escalate at all.

Justice Ginsburg: You don't... you can't attribute what you just said to the trial court, and you emphasize the trial court's findings.

The trial court said about what went wrong what the police should have done, as required under the Fourth Amendment, was knock on the door.

The evidence is there was a loud, tumultuous thing going on and that the occupants probably would not have heard him.

But under the Fourth Amendment, he has an obligation to at least attempt before entering.

Now, that's a statement that what went wrong was they didn't knock even though it was likely a futile act.

Do you... do you agree that that's a correct statement of the law, that what the police didn't do that they should have done was knock?

Mr. Studebaker: Yes, Justice Ginsburg, they should have knocked.

They should have made that effort first.

Justice Scalia: Why isn't screaming, police, enough?

I mean, as I understand the facts, he first opened the screen door.

Now, is... is that an entry?

He didn't go in.

I assume the screen door opens out.

Most screen doors open out.

He opened the screen door and shouted, police.

Now, that... that doesn't count?

he has to knock on the screen door instead, even though they're more likely to hear him if he opens the screen door and yells, police?

Why doesn't that meet the requirement?

I... this... why is the trial court obsessed with knocking?

[Laughter]

I don't understand that.

Mr. Studebaker: Your Honor, and I think the reason the... the trial court and... is concerned about the knocking issue is it's, if you will, the baseline requirement under the Fourth Amendment, under the facts of this case, was to make their presence known by knocking.

Justice Souter: No, but the... as I understand the... the trial court, he accepted the probability that the knock would be futile, and yet he thought as a formality it was nonetheless required.

A, do you understand the trial court to have taken that position?

And B, if it did, do you believe that is correct as a statement of Fourth Amendment law?

Mr. Studebaker: I'm sorry, Justice Souter.

I didn't catch the first A part.

Justice Souter: Well, did... do you understand the trial court to have taken the position that even though the knock would probably have been futile, the police were required to... to make it anyway, to knock anyway?

Mr. Studebaker: That is what the trial court--

Justice Souter: And... and do you understand that to be a Fourth Amendment requirement, i.e., no futility exception?

Mr. Studebaker: --I do, Your Honor, and I know that that's a... a complicated issue, but it's still a requirement.

But further, the court... the trial court--

Justice Souter: Why should there be no futility exception?

Mr. Studebaker: --Well, even if there is, Your Honor, the trial court did not just say that... there... he... the evidence was gone because of the failure to knock.

The trial court found that the exigencies, as well as the appellate courts, didn't rise to the level which would require entry into the home.

Justice Souter: Well, that... that may be on your argument that noise is never sufficient to dispense with a warrant requirement.

But it seems to me that in... in the reasonableness analysis that the trial court was going through, the trial court was saying even if it would probably be futile, it is not a reasonable entry without a knock.

And... and I take it you... you accept that and you think the trial court was correct, that there is no futility exception.

Mr. Studebaker: I... I agree, Your Honor, and this is why.

Under, I believe, Wilson v.--

Justice Souter: Why... why should we require a... a futile act in the name of reasonableness?

Mr. Studebaker: --Your Honor, first, it wouldn't have taken any effort at all to follow through on this, and even though this Court has ruled that, you know, there is mandatory knock and announce... or requirement, with some exceptions, I don't believe that this is one of those exceptions.

Justice Souter: No one is denying that.

I mean, we've had a knock and announcement requirement for 900 years.

Mr. Studebaker: Correct.

Justice Souter: But the question is do you have to knock and announce when, on the facts before you, it is apparent that nobody will hear the knock and it will just be a wasted gesture.

Mr. Studebaker: Yes.

Justice Souter: Why?

Mr. Studebaker: Because, Your Honor, it's our position that it's one of the... the threshold requirements to protect somebody when they're inside their home is to make that effort.

Justice Souter: But isn't the standard of the Fourth Amendment a reasonableness standard, and isn't there something bizarre about saying reasonableness requires a totally futile gesture?

Mr. Studebaker: That was the finding of the court, Your Honor, the trial court, that it was futile.

But, again, when an officer is placed in that situation to say that if an officer can decide whether something is futile or not, that could actually... then that exception, if we're not careful, absorb that rule.

So I--

Justice Souter: Well, yes, that's why courts review these things.

Mr. Studebaker: --Correct, and that is--

Justice Souter: And if the court says, yes, based on the evidence before me, it would have been futile, do you think Fourth Amendment reasonableness requires the court and ultimately the officer to demand the knock anyway?

Mr. Studebaker: --Personally?

Yes.

Legally?

No.

Justice Souter: Okay.

Mr. Studebaker: I mean, I am not going to try... but, again, this Court... the... the courts below did say that that exigent circumstances didn't rise to the level--

Justice Ginsburg: Where did the... where did the trial court say that in the findings of facts?

Mr. Studebaker: --I'm sorry, Your Honor?

Justice Ginsburg: I'm looking at the findings of facts.

They're in the petition appendix at page 46 and 47.

I don't see anything that has been specifically identified by the finder of fact as inadequate, other than the failure to knock.

Where... where does the... where does the court say it doesn't rise to the level of exigent circumstances?

Mr. Studebaker: Your Honor, if I look at paragraph 5 of the joint appendix... or I'm sorry... of the... of the order, it says, at that point in time the court finds no exigent--

Justice Scalia: Where is it?

Where is it?

Mr. Studebaker: --I'm sorry, Your Honor.

In the petition for cert filed by the State of Utah, and it would be appendix page 47.

Justice Ginsburg: Yes, but what it says right after that to explain is it would have been sufficient.

What he... what he should have done was knock, and that would have supplied all that was necessary.

Mr. Studebaker: Your Honor, and again, this isn't the, maybe, best worded order that the city has prepared in this case when they... when the... it was actually the city that prepared this, petitioners.

When I look at it, I look at two different sentences there.

There was no exigent circumstances, and further, what he should have done was knock.

But further, the two appellate courts that heard this matter before, did rule on the exigent circumstances because that's what the petitioners in this Court had brought before the appellate courts, and they found that in both the Utah Court of Appeals and the Utah Supreme Court, that the exigent circumstances weren't sufficient enough.

Justice Scalia: You know, maybe... maybe you're taking our announce and a knock... knock and announce requirement too... too seriously or too literally.

I mean, if a police officer comes up and the door is open, what does he have to do?

Lean over and knock on the side of the door?

Can't he shout, hello, police?

Don't you think that satisfies a knock and announce requirement?

Mr. Studebaker: Your Honor--

Justice Scalia: You really think you got to knock even when the door is open.

Mr. Studebaker: --Your Honor, under the situation, he's got to make his presence known.

Justice Scalia: Okay.

And he did that here.

Mr. Studebaker: And--

Justice Scalia: He stood at the door.

He opened the screen door and said, police--

Mr. Studebaker: --And--

Justice Scalia: --which he thought would be more effective than knocking on... on the... you know, the... the edge of a screen door, which doesn't make a very good knock.

[Laughter]

Mr. Studebaker: --And once he raised his voice, though, Your Honor, and... and made himself a little bit more vocal, then they noticed him there.

And the--

Chief Justice Roberts: But they still didn't stop.

I... I read somewhere in the facts that only gradually, as each participant in the melee became aware of his presence, did they sort of stop.

It wasn't that as soon as he entered, everything quieted down immediately.

Mr. Studebaker: --Chief Justice, like you say, once they made their presence known, it dissipated.

The... the position would be if they can make their presence known inside the home, they can make their presence known outside the home and still protect that sanctity of the home that we're trying to insure that people are protected in within their home.

Justice Ginsburg: Well, there seemed to be agreement that they couldn't have made their presence known because the noise inside was so loud that they would not have been heard.

Mr. Studebaker: That's what the... the lower courts have found to be true.

But Justice... correctly, Justice Ginsburg, they found it to be true that the exigent circumstances were not met under these facts.

It wasn't serious enough to enter the home without the warrant, and I think that's the pivot point.

Where is that line on the exigent circumstances?

And our position would be that that line... that it's got to be serious, it's got to be imminent, it's got to be an ongoing situation, something where somebody is either going to get seriously injured, evidence is going to be destroyed, somebody is going to flee.

Justice Alito: Well, was there anything in the facts that a reasonable officer would know from looking in the window to suggest that these... the adults were not... did not have the intention of inflicting some sort of serious injury on this young man that they were restraining?

Mr. Studebaker: Based upon the officer's testimony at the suppression hearing, Your Honor, it would be that they did not have a serious intention to harm him is the fact that, one, there was nothing showing that they were actually doing anything more than restraining him, that juvenile.

There's nothing in the record that shows that they were beating on him, that they were molesting him, or you know--

Justice Alito: They had... did they have any reason to know why they were holding him?

Mr. Studebaker: --I would say that they would, Justice Alito, and this is why.

You know, all that they were saying was they were trying to get the... the juvenile to calm down.

They were trying to get him to settle down.

This was a situation where the officer testified that... at the suppression hearing, that there was alcohol involved, that there was a minor.

Those types of situations don't demonstrate the fact that this was an ongoing violent situation.

Again... and then further, the officers were called out for a party.

They weren't called out for a fight in progress or... or some type of physical altercation.

They were called out because somebody had a loud disturbance going on.

And those facts in my mind's eye don't rise to the level and would show the officer... especially when the officer is standing outside the home watching this event, that there's nothing that... that would rise to the level of entering the home under the exigent circumstances.

Justice Ginsburg: The Utah Supreme Court seemed to be puzzled by your failure to raise the Utah protection against the... the counterpart to the Fourth Amendment.

They seemed to suggest that their own constitution afforded greater protection to the privacy of the home.

Was there a reason why you argued only the U.S. Constitution and not the State constitution?

Mr. Studebaker: Justice Ginsburg, I was not the trial counsel below or at the appellate court, so I cannot determine what his matter was or what... what his basis was for that decision.

And it... then it would appear that you're correct in the fact that the Utah Supreme Court is concerned upon that issue.

But the fact is that it seems to have been briefed under the Fourth Amendment, has come up under the Fourth Amendment issues, and so that's what we're... we're looking at.

And even though a State, obviously, can give more protections to its citizens under a State constitution, the Fourth Amendment is still a... if you will, a baseline requirement, and it still applies to Federal criminal courts.

Justice Stevens: May I ask?

I don't think the charges are in the record.

At least I missed them.

They were charged with... what are the charges and how... what were the penalty for what the defendants were exposed to?

There's been no trial.

They... they suppressed the evidence.

I suppose the proceedings were dismissed, were they?

Mr. Studebaker: Your Honor, the proceedings have been dismissed against my clients.

That is correct.

And to answer the Court's question, the charges that they were facing was intoxication... no.

I'm sorry.

Disorderly conduct, intoxication, and contributing to the delinquency of a minor.

Justice Stevens: What are the penalties for those charges?

Mr. Studebaker: Worst case scenario, Your Honor, they could be charged with up to 6 months in the county jail, each one consecutive to each other.

Justice Stevens: That's the major matter we're resolving today.

Mr. Studebaker: Yes, Your Honor.

Chief Justice Roberts: What is the actual evidence that was suppressed?

And to what extent is that evidence that wasn't available just from looking in through the door?

Mr. Studebaker: Mr. Chief Justice, the evidence was... that was suppressed was everything that the officer or officers saw once they entered the home and/or heard once they entered the home, basically anything that they obtained once they entered the home.

The answer to Your Honor's--

Chief Justice Roberts: Couldn't they have gotten all... wouldn't he have been able to testify to all of that without even entering the home?

Mr. Studebaker: --They could have, Your Honor.

However, they... they did not.

The prosecutor at the time didn't proceed under that issue.

I'm not aware of why he did, but we have, though, is obviously that... that may have happened.

And as the Court addressed previously, there may have been then an issue related to the curtilage which would have had to have been addressed or discussed.

Justice Stevens: Yes, but among the evidence they did have was that two... two teenagers were drinking beer in the back yard.

So they pretty clear... the alcohol... they could have gotten that in evidence.

Mr. Studebaker: It could have, Your Honor, but I don't know why it did not except for the fact that it could have been built into the curtilage--

Justice Stevens: This wasn't kind of constructed as a test case, by any chance, was it?

Mr. Studebaker: --No, it was not, Your Honor.

Not at all.

But--

Chief Justice Roberts: Well, not by you.

Mr. Studebaker: --No, it was not, Your Honor.

That's correct.

What we have, Your Honors, is a situation where under the exigent circumstances, it did not rise to the level which would require the... the officers to enter the home without getting a warrant.

And in the alternative, if they look at emergency aid, to enter the home under the emergency aid doctrine, which would be the equivalent in our opinion to a special needs assessment, then we have to look at probable cause.

We have to look at their intent to enter because there's no probable cause to enter if they're performing that caretaking role to protect people.

Obviously, the ultimate concern in... in any type of situation is somebody's sanctity of their home.

It becomes a weighing situation where trial courts are... are being charged to weigh the evidence, weigh the credibility of the people who testify, and then also take into account the constitutional protections which the parties are awarded.

And we believe that based upon the facts and the evidence that were... was presented, that the three different Utah courts that heard this matter were appropriate in their... in their suppression decisions.

Thank you.

Rebuttal of Jeffrey S. Gray

Chief Justice Roberts: Thank you, counsel.

Mr. Gray, you have 6 minutes remaining.

Mr. Gray: Just a matter of clarification initially.

Disorderly conduct is a class C misdemeanor, punishable by up to 90 days in jail under the... how it was charged here.

Also intoxication is a class C misdemeanor, and contributing to the delinquency of a minor is a class B misdemeanor, punishable by up to 6 months in jail.

So that's... that's what... but the officers... and again, this case isn't about what they were ultimately charged with.

It's whether or not they had a reasonable basis to believe that immediate intervention was necessary.

Justice Stevens: Don't you think the evidence that was available without going in the house would have supported all those charges?

Mr. Gray: Not the intoxication.

The intoxication has to be--

Justice Stevens: But two teenagers in the back yard were intoxicated.

Mr. Gray: --The... the juveniles.

But the defendants in this case were the adults inside the home.

Justice Stevens: Oh, they charge that the adults were intoxicated.

Mr. Gray: Yes.

Justice Stevens: Well, that's a serious crime in Utah I guess.

[Laughter]

Mr. Gray: We anticipated that comment actually.

[Laughter]

And--

Justice Stevens: And what's your response?

[Laughter]

Mr. Gray: --Normally... normally intoxication... we think of it as... as public intoxication, and... and that's where it's usually prosecuted and where we find it.

But intoxication that can become an offense where it disturbs others outside of the home, and that's what happened here.

Chief Justice Roberts: Counsel, you have... you have two questions presented.

The second is whether this was sufficiently... sufficiently exigent to fall under the exigent circumstances.

But the first was whether the test should turn on the officer's subjective motivation.

I haven't heard much about that this morning.

How is that presented on these facts?

Mr. Gray: Well, the court created two different tests.

The Utah court created two different tests.

And under the one test, it examined whether or not the officers were primarily motivated by a desire to arrest or search for evidence.

Now, the court, the Utah Supreme Court, concluded that they did... that they were... their motives were primarily law enforcement motives because they did not render aid.

And this Court has repeatedly held that an officer's subjective motives play no part in the objective reasonableness test, and it should not do so here.

Justice Ginsburg, you indicated that there was no... no suggestion of domestic violence.

The Utah Supreme Court actually acknowledged that where violence is seen in a home between adults and, for example, a younger person, that there would be reason to believe that domestic violence is possibly present.

And that's what... now, the court refused to look at that because there was no finding that the inhabitants or the... those involved were actually cohabitants.

Of course, this Court has never required that officers have a certainty of the situation, only a reasonable belief, and they clearly have that.

And in any event, whether or not it's domestic violence or some other type of violence, it's something that I believe this Court in Mincey recognized, that officers can and... and probably should... maybe they didn't go far, but it would be our position that officers should intervene in the face of violence, and that's what the officers did here.

Justice Ginsburg: My point was simply that this was not a 911 call from a distressed spouse.

This was a neighbor saying they're keeping me up at night, so that the... the police response was to the noise, not to the violence.

Mr. Gray: The initial response was clearly to the noise, but once the officers arrived, it became apparent that there was violence ongoing in the house and that's how the officers proceeded.

If there are no further questions, we would ask the Court to reverse the decision of the Utah Supreme Court.

Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted.

Attribution:

The Oyez Project

Featured:

Samson v. California - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

Samson v. California

Media File:

04-9728_20060222-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert A. Long, Jr.

Chief Justice Roberts: We'll hear argument first this morning in Samson versus California.

Mr. Long.

Mr. Long: Mr. Chief Justice, and may it please the Court--

The search in this case was not based on individualized suspicion, and no other adequate safeguards limited the police officer's discretion to search Petitioner.

For this reason, the search, which would not be permitted by virtually any other State or by the Federal Government, was unreasonable.

The Court has reaffirmed many times that the fourth amendment does not permit the individual officer in the field to exercise unconstrained discretion to search.

The Court has said that the fourth amendment is primarily directed at the evil... it was primarily directed at the evil of general warrants and writs of assistance, and the evil of general warrants and writs of assistance was that they gave individual officers blanket authority to search where they pleased and placed the liberty of every man in the hands of every petty officer.

Justice Ginsburg: Mr. Long--

Chief Justice Roberts: Mr. Long--

Justice Ginsburg: --with respect to liberty, as it... it's not disputed, is it, that your client could have had his parole revoked even though the search was suspicionless?

So, we're talking about the difference between revocation of parole, on the one hand, and a separate criminal offense.

Is that right?

Mr. Long: Well, a parolee has conditional liberty.

But, at the time of this search, Mr. Samson was on parole, there was no suspicion of any wrongdoing--

Justice Ginsburg: But I thought that evidence seized could be introduced, could be a basis to revoke parole.

Mr. Long: --Oh, well, the Court held, in the Scott case, that the exclusionary rule does not apply at parole revocation hearings.

So, if there is an unreasonable search of a parolee that violates the fourth amendment, the evidence could not be admitted at a criminal trial, but it could be admitted at a parole revocation--

Justice Ginsburg: So, the... what the... the consequence here is whether--

Mr. Long: --I--

Justice Ginsburg: --he will have his parole revoked--

Mr. Long: --I--

Justice Ginsburg: --or he will have a separate criminal offense.

Mr. Long: --I understand your question.

In California, Justice Ginsburg, a nonviolent drug offense, the possession of a small amount of an illegal substance, is not a basis for revocation of parole.

It is not possible to revoke parole in California for this offense.

So, parole revocation would not have been a possibility here.

Justice Kennedy: Well, Justice Ginsburg, I suppose, can pursue her own line of questioning, but let me ask you this, because I... her question suggests this, to me at least.

Suppose the parole officer said,

"Now, look, I'm going to search you. "

"If you don't consent, then I'm going to revoke your parole. "

Mr. Long: Well, this, of course, was a police officer, not a parole officer.

Justice Kennedy: I--

Mr. Long: But if--

Justice Kennedy: --Well, I... my question was a parole officer, and I'll get to police officer next.

Mr. Long: --All right.

I think if a parole officer said,

"You must consent to this search-- "

Justice Kennedy: When you see the--

Mr. Long: --"# this particular search"--

Justice Kennedy: --person on the street, et cetera, et cetera.

Mr. Long: "And, if you don't, I'll revoke your. "

--I mean, the consent is not, in this case, first.

I mean, California has said, the Supreme Court has said, parole, in the parole search condition, is imposed as a matter of law.

Your hypothetical poses a question of, Could there be knowing and voluntary consent to a search if the consequence of refusing is revocation of parole?

I would argue, in that situation, that the consequences of refusal are so dire that, effectively, the parolee would have no real choice but to consent.

So, it would be, in a sense, a coerced consent.

Justice Scalia: Why are they dire?

I mean, he's just back in the situation he would have been in, did he not comply with the conditions of his parole.

I don't see that that's dire.

He has a choice.

He can stay in prison and--

Mr. Long: Well--

Justice Scalia: --and suffer the reduction of privacy there, which is much, much greater than being subjected to... I mean, he... he cannot even go to the toilet in privacy.

Or he can go out on parole, subject to the condition that--

Mr. Long: --Well--

Justice Scalia: --that he--

Mr. Long: --I mean--

Justice Scalia: --he can--

Mr. Long: --I--

Justice Scalia: --be searched.

Mr. Long: --I have two answers to that, Justice Scalia.

I mean, first, in California, you finish your prison sentence, and then parole is a separate period that happens.

The California Supreme Court said, in People v. Guzman and other cases, parole is not a part of the sentence--

Justice Scalia: No, but it's--

Mr. Long: --in California.

Justice Scalia: --but it's also clear from the California statute that it is not a right, that it's a privilege, that you get the privilege of parole in exchange... in exchange for agreeing to the conditions, one of which is that you can be searched.

Mr. Long: Well, it's... in California, every inmate gets parole.

It's a matter of law.

It's not a privilege... in Morrissey against Brewer.

The Court... in other cases, the Court rejected the rights privilege distinction anyway.

Justice Scalia: California statute says it's a privilege, doesn't it?

Mr. Long: Yes, in Section 3067.

Justice Scalia: It does.

Mr. Long: But it is... it is also a... Section 3000 of the California penal code says every prisoner gets parole.

It is imposed on the prisoner as--

Justice Scalia: Even if the--

Mr. Long: --a matter of law.

Justice Scalia: --prisoner... oh, I thought that he can turn it down, and that some prisoners do, if--

Mr. Long: Well--

Justice Scalia: --if they decide that they don't want to be subjected to searches.

Mr. Long: --The California Supreme Court has held, in People v. Reyes, and in other cases cited in our brief, that, in California, parole is not a matter of choice, it is imposed as a matter of law.

Justice Scalia: Is... and you mean people are put out on the street when... kicking and screaming when they say,

"No, I want to stay in jail. "

"I don't want to be-- "

Mr. Long: Well, it's--

Justice Scalia: "# searched. "

"I would rather stay in jail? "

And--

Mr. Long: --Well--

Justice Scalia: --they are dragged out--

Mr. Long: --That--

Justice Scalia: --into the street.

Is that what happens?

Mr. Long: --That is what the California Supreme Court has said.

Justice Scalia: Oh, I--

Mr. Long: And what the statutes say is--

Justice Scalia: --I don't think so.

Mr. Long: --That... the statutes say that parole is a... is a transitional period, and that every inmate should undergo a period of parole.

But coming back to your earlier question, the Court has said that the condition of a parolee is very different from the condition of a prisoner.

The Court said that in Morrissey against Brewer.

And the Court said, in Griffin, as to probationers, that while the fourth amendment rights of probationers... and so, parolees, too, we concede... are reduced, there are... the State can go too far.

And if the State exceeds--

Chief Justice Roberts: --Well, but--

Mr. Long: --the permissible limits, it's a violation.

Chief Justice Roberts: --their condition is very different, in a broad range of areas.

They... you give up first amendment rights.

For example, it's typical to have a condition of parole that you don't consort with known criminals or gang members.

You... often it says you must refrain from alcohol.

Sometimes they say you can't go near particular places, if they think that's going to tempt you to return to a life of crime.

Those are all first amendment rights that are sacrificed while you're on parole.

Why is this any different?

Mr. Long: Well, there are many rights that are sacrificed.

What the Court has said about the fourth amendment rights is, because parolees have conditional liberty, they will have a reduced, but not eliminated, fourth amendment protection--

Chief Justice Roberts: What about a drug... what if you're convicted of a drug offense, you're on parole, and one of the conditions is, every week you have to go in for a drug test?

Mr. Long: --Well, that--

Chief Justice Roberts: Do you--

Mr. Long: --that would be--

Chief Justice Roberts: --do you... is that acceptable?

Mr. Long: --That would be different in several respects, Mr. Chief Justice.

First of all, there would not be discretion.

You wouldn't have the individual officer--

Chief Justice Roberts: But it would be a fourth amendment right that you would be giving up--

Mr. Long: --Yes.

And--

Chief Justice Roberts: --that you would otherwise have if you weren't on parole.

Mr. Long: --And I want to be clear, we are not... we're arguing there is a broad spectrum of searches that States can undertake of parolees, and I'm, by no means, arguing today that all of them, or even most of them, are unconstitutional.

This is a--

Justice Stevens: What would you say about a condition that you must... not a regular drug test... you just have to submit yourself to a drug test whenever a police officer asks you to?

Mr. Long: --Well, you know, that would be much narrower, because it would simply be a drug test.

I think it would have the problems of... the officer would have complete discretion.

If it were like the California--

Chief Justice Roberts: Well, but it's... I mean, the point--

Justice Stevens: Do you think it would valid?

That's what I was asking you.

Mr. Long: --I think, because that's a much narrower test, that that could pass muster if... but I would think there really ought to be some guidance to the officer.

I think our ultimate submission today is--

Justice Kennedy: Well, so that a--

Mr. Long: --this is so--

Justice Kennedy: --so that a burglar could be searched for burglar tools--

Mr. Long: --Well--

Justice Kennedy: --but not for drugs?

And the drug addict can be searched for drugs, and not burglar tools?

Mr. Long: --If it were... if it were tied to the crime that the parolee has committed, you know, that would give it some limitation.

This is a completely unlimited search, for anything, any crime.

Chief Justice Roberts: --But Justice Stevens's question highlights the point that you criticize about, the randomness of it is often a critical element.

I suppose it makes much more sense to say you're subject to a random drug test than that you have to come in at a scheduled time, when you... presumably, you could refrain from using drugs prior to the test.

And, to some extent, it's the same, even if you're not talking about a drug test.

Mr. Long: Well, in all--

Chief Justice Roberts: The search is only going to be effective if it's not announced or--

Mr. Long: --Well, in--

Chief Justice Roberts: --scheduled.

Mr. Long: --and in this Court's suspicionless search cases, you can have a random test where you draw names at random.

There's some other process that doesn't leave it up to each individual officer to decide who gets the drug test or which car to stop to check the driver's license and registration.

What the Court has consistently held as really at the core of the fourth amendment is this notion of the individual officer in the field has complete discretion to decide,

"Do I search this person? "

"Do I not? "

"What's the scope of the search? "

"What do-- "

Justice Ginsburg: Are you relying--

Mr. Long: --"# I search for"?

Justice Ginsburg: --on the difference between... you said "officer in the field".

Would this be okay if it had been his parole officer?

Mr. Long: Well, I think--

Justice Ginsburg: The parole officer was walking along the street, saw this guy, and said, "I'm going to search you".

Mr. Long: --I think it's a very different set of circumstances if we have a parole officer.

This Court has said, at least twice, in Griffin and in Scott, that a parole officer has a different function.

They are not in an adversarial, or a purely adversarial, relationship.

They often think of the parolee or the probationer as a client.

They're trying to see that the person succeeds.

In some sense, the parole officer fails when the parolee goes back to prison.

The parole... the parole officer can act on their entire knowledge and experience with the client, or the parolee.

So, all of that makes a difference.

And the Court has noted that several times.

Justice Scalia: When he's in prison, is there any problem about the prison guards intruding upon his privacy, willy nilly, whenever they choose?

Mr. Long: The... as I understand the Court's--

Justice Scalia: I mean, walking--

Mr. Long: --holding--

Justice Scalia: --by his cell, which is always opened, and checking in on him to see what's... what he's doing.

Mr. Long: --As I understand the Court's holding in Hudson against Palmer, the fourth amendment does not apply in a prison cell.

And--

Justice Scalia: So, he's better off on parole than... well, at least no worse off on parole than he would be when he was in prison.

Mr. Long: --But, Your Honor, that's not the way this Court has analyzed the fourth amendment issues.

It's a different situation.

It is conditional liberty.

It's the... that sort of active grace theory, or right, privilege, distinction, or greater power includes the lesser, all those arguments have been rejected, in--

Justice Scalia: Are--

Mr. Long: --Morrissey against Brewer, and Gagnon--

Justice Souter: What--

Mr. Long: --against Scarpelli.

Justice Scalia: --Not--

Justice Souter: --what do you make of--

Justice Scalia: --by me.

No, go ahead.

Mr. Long: It's--

Justice Souter: --I was going to say, What do you make of the pragmatic argument that seems to cut all of your objections?

The pragmatic argument is both in favor of complete discretion and of suspicionless search, that the in terrorem effect of knowing that these searches can occur at any moment, in fact, discourages recidivism.

Mr. Long: --Well--

Justice Souter: What's your response to that?

Mr. Long: --I have a pragmatic argument, and then I have an argument just based on the fourth amendment.

Pragmatically, no other State, as far as we can tell, and not the Federal Government, authorizes this kind of search; that is, blanket suspicionless discretionary searches by police officers.

Justice Souter: Apart from--

Mr. Long: So--

Justice Souter: --Apart from the lack of popularity of the State's view, do--

Mr. Long: --Well--

Justice Souter: --do we have... do we have any empirical evidence that bears on the in terrorem argument?

Mr. Long: --The... well, the empirical evidence is that all the other States don't seem to be having a harder time--

Justice Souter: No, I--

Mr. Long: --with recidivism.

Justice Souter: --I realize that.

But, beyond that, do we have any empirical evidence, one way or the other?

Mr. Long: Well, the California... I think that's a pretty powerful demonstration, but we do have, beyond that, empirically, California was with all the other States until the People against Reyes decision.

Now they've moved to suspicionless searches.

They seem to have about the same rate of recidivism--

Justice Souter: I take it--

Mr. Long: --as they--

Justice Souter: --the answer is--

Mr. Long: --did before.

Justice Souter: --we don't have any empirical evidence, one way or the other, apart from the fact that California stands out in its system.

Is that correct?

Mr. Long: Well, I... I'm... think I'm offering you evidence that counts as empirical in my mind, but--

Justice Souter: No, I--

Mr. Long: --apparently it's not--

Justice Souter: --I know it, but I've said, about three times, that I want to get beyond the peculiar position of California to any other empirical evidence that cuts for you or against you.

And I take it there really isn't--

Mr. Long: --Well, there... we have a footnote.

There is a brief submitted by a Stanford law professor, and we have at least a footnote in our brief.

There is some social science research that suggests that this more intensive supervision is really not effective, if you look at broad numbers.

I mean, I think you will catch some additional people.

I mean, it happened in this case.

But if you step back and look at the overall effects, it's not... it's not particularly helpful--

Justice Breyer: Why--

Chief Justice Roberts: Well--

Justice Breyer: --Why, if we're going to catch some additional people, is that not sufficient?

That is, why is it unreasonable, say, not for law professors, but business school professors, management consultants, to say,

"You have a lot of prisoners in California, hundreds of thousands... I don't know, maybe more than 100,000... and we'll tell the Legislature that they can cut the terms, save money, release them early, but we want to have management checks. "

"And the management checks are, you might be searched at any time. "

"And we catch a few. "

"And that's helpful. "

Now, if the--

Mr. Long: --Well--

Justice Breyer: --State decides that, what's unreasonable about it?

"They're"--

Mr. Long: --Well--

Justice Breyer: "# letting the people out earlier than they otherwise would-- "

Mr. Long: --Because--

Justice Breyer: --says the Legislature.

Mr. Long: --Because, Justice Breyer, it has to be a balancing analysis, and--

Justice Breyer: And what's on the other side?

The other side--

Mr. Long: --Well--

Justice Breyer: --is, you'd rather not have policemen search you, but your alternative is going to be in jail.

Mr. Long: --Well, I mean, the other side is a search condition that says you have... you could be searched at any time, any place, by any police officer for evidence of any crime, is a breathtakingly broad invasion of privacy.

Justice Breyer: But, of course, that's how it happens when he's in prison.

Mr. Long: Well, but he has come out of prison.

The State has seen fit to release him on parole into society.

He has conditional liberty.

And the Court--

Justice Scalia: But there is a breathtakingly high probability that he is committing a crime.

The statistics cited in the Government's brief say that in an April 2001 report prepared by the California Criminal Justice Statistics Center, 68 percent of adult parolees are returned to prison... 68 percent; 55 percent, for a parole violation; and 13 percent for the commission of a new felony offense.

I mean, it seems to me a breathtaking statistic like that may call for breathtaking--

Mr. Long: --Yes.

Justice Scalia: --measures to try to police the matter closely.

Mr. Long: It is a very serious problem.

We don't want to minimize it.

I mean, it is a fact that many... many parolees... and this is true especially in California... end up being returned for technical violations, like not showing up to meetings with parole officers.

Some of the offenses are not as serious as others.

But it is a very serious problem.

We recognize that.

But what the Court has said is that the gravity of the problem cannot justify any means.

There has to be a balancing of the invasion of privacy against the State's need to undertake this.

And coming back to my second answer to the question you asked several minutes ago, Justice Scalia, I mean, ultimately this search is a... it's a general warrant.

It's a writ of assistance.

It's limited to parolees, but if the Court is going to stand by what it has said in Griffin and other cases, that their parolees and probationers have some modicum of fourth amendment rights... reduced, we recognize that... this is... this is the core of what the--

Chief Justice Roberts: --Well, the--

Mr. Long: --framers of--

Chief Justice Roberts: --California--

Mr. Long: --the fourth amendment prohibited.

Chief Justice Roberts: --The California Supreme Court said that the fourth amendment applied to these searches, but it only protected in a limited way, along the same lines as we said in Griffin.

And the standard they applied was, it protected against arbitrary or harassing or capricious searches--

Mr. Long: Yes, but--

Chief Justice Roberts: --which seems to go to your argument, which is centered around the unbridled discretion of the officer.

And the California Supreme Court is saying it's not unbridled.

Mr. Long: --That is their answer to my argument, and I want to be very clear about

"arbitrary, capricious, and harassing. "

That's the California Supreme Court's standard.

So, of course, they get to define it.

And they have not defined it the way this Court perhaps would define "arbitrary".

It's not arbitrary, capricious, or harassing if it has a permissible law enforcement purpose.

So, as long as the officer says,

"Well, I don't have any reason to think there's evidence of any crime here, but that's what I'm looking for. "

"Perhaps there's evidence of crime-- "

Chief Justice Roberts: Well, that's--

Mr. Long: --that's enough.

Chief Justice Roberts: --fine.

But it turns out he stops the guy every hour of the day, then he has a pretty strong case that this is for harassment, and it's not--

Mr. Long: Well--

Chief Justice Roberts: --for the special law enforcement--

Mr. Long: --Well, and--

Chief Justice Roberts: --need that accompanies releasing parolees.

Mr. Long: --And I take it the fourth amendment itself would prohibit that sort of thing.

But it... you couldn't... you couldn't justify a general warrant by saying,

"Well, yes, the officer can search anybody, without any suspicion, and he can choose. "

But it... you know, the search can't happen too often, or it can't last too long.

That would not be... and you... and you... similarly, it would not be an answer to say,

"Well, as long as he's looking for evidence of crime. "

Chief Justice Roberts: No, but your point was that this is the core of the fourth amendment, and they're taking away all of the protection and leaving it to the unbridled discretion.

And that turns out to be not the case.

Under the law that authorizes the procedure, the California Supreme Court interpretation is that the fourth amendment provides protection against harassment or arbitrary and--

Mr. Long: Well--

Chief Justice Roberts: --capricious searches.

Mr. Long: --I mean, my argument is that what is left of the fourth amendment under the California approach is not the core.

It's the far periphery.

There has never been a case... and we were able to find over a hundred, and perhaps over 200; it depends on how you count... of cases where parolees or probationers have said,

"You know, this search was arbitrary or capricious or harassing. "

It is always rejected, for the same reason it was in this case.

The Court says, "Well"--

Chief Justice Roberts: Then which way do you think that cuts?

There's--

Mr. Long: --It--

Chief Justice Roberts: --never been a case of a harassing search of a parolee.

Mr. Long: --I--

Chief Justice Roberts: I mean, that's what... or 200 cases in the--

Mr. Long: --I--

Chief Justice Roberts: --in--

Mr. Long: --I think it cuts in the direction that it is an empty, vacuous standard.

It's a standard--

Justice Ginsburg: Why?

Mr. Long: --that's always--

Justice Ginsburg: Why?

If it... if it... if it... it doesn't go to the suspicionless character of the search, but it does say it has to be reasonable in time, place, or manner.

Mr. Long: --Yes.

Justice Ginsburg: And maybe the--

Mr. Long: Yes.

Justice Ginsburg: --officers are reasonable in time, place--

Mr. Long: Yes.

Justice Ginsburg: --or manner.

Mr. Long: And... but it's... it had... there has never been a case in which a court has rejected a parolee search as unreasonable in time, place, or manner.

And you could--

Justice Ginsburg: How many times has it been challenged--

Mr. Long: --As--

Justice Ginsburg: --on the--

Mr. Long: --we said--

Justice Ginsburg: --on the--

Mr. Long: --at... we found over a hundred cases in which it's been challenged in the California courts.

And it--

Justice Alito: Well--

Mr. Long: --I mean, if you think about it, if the search is, say, at night, the argument is going to be... well, if we said we'd not...

"never going to search you at night. "

then you would commit crimes at night.

We had a very extreme case in our brief about body cavity searches.

And they said,

"Well, that... of course, that. "

--you know, the suggestion was,

"Of course, that would be too extreme. "

But you could see an argument if parolees and probationers knew that that was off limits, that... you know, that would become a--

Justice Scalia: You say there was a case in which, without any special reason, they did--

Mr. Long: --No.

Let--

Justice Scalia: --a cavity--

Mr. Long: --No.

Justice Scalia: --And that would--

Mr. Long: Let me be--

Justice Scalia: --Oh, okay.

Mr. Long: --I am not aware of any actual case.

We posited that.

We said... you know, because you don't need to know anything about the parolee, except he's on parole, and you can search for evidence of any crime.

You don't need any suspicion that... so, you could have somebody, a sort of white collar criminal, or you'd check someone who's written a bad check.

And if you say,

"Well, I think perhaps you're involved in drugs. "

"Maybe you're one of these balloon swallowers. "

--you don't need any actual reason to think that's happening, you can simply say, "I want to investigate that".

And the way... you have to investigate by X rays or something else quite intrusive.

Justice Scalia: The California Supreme Court may... might well hold that it's arbitrary to conduct such an extreme search as a body cavity search, or to... I don't know--

Mr. Long: Well--

Justice Scalia: --to decide to search the person when he's in the men's room or something.

I mean, there are--

Mr. Long: --But--

Justice Scalia: --there are a lot of limitations that the California court--

Mr. Long: --They might, and--

Justice Scalia: --could put on it, within the context of harassment or--

Mr. Long: --But our principal submission, Justice Scalia... I mean, if California said,

"We have a terrible problem with crime in California; and, therefore, we're authorizing every police officer to search every person anytime, anywhere, for any crime. "

that would be, I would submit, the clearest sort of fourth amendment violation you could imagine.

It would be a general warrant or a writ of assistance.

It couldn't possibly be justified by saying,

"Well, if it gets too extreme, if it gets into body cavity searches, we won't allow it. "

We are talking about parolees, yes.

Their fourth amendment rights are reduced, yes.

We recognize that.

But saying that this sort of absolutely unguided discretion--

Justice Breyer: But the reason--

Mr. Long: --there's no sort of--

Justice Breyer: --the reason that people, I think, are saying that is because they have a lot of prisoners, they're trying to create a category of people who don't have to stay in prison, where they have no rights.

And the real question is, Can California, in trying to create this interim category, reduce the fourth amendment right in the way you describe?

Mr. Long: --They--

Justice Breyer: Of course they can't do it, but the justification is not that there is something bad about this particular individual or he's in some kind of limbo.

The reason is that there's a policy tending towards release, which California has decided they want to introduce this as a condition.

Now--

Mr. Long: --Yes.

Justice Breyer: --and so, what... and the question is, What's unreasonable about that?

Mr. Long: Well, what's unreasonable about it is that it goes so far in the direction of eliminating the fourth amendment rights of people who are not prisoners... they are... they have conditional liberty... that it is simply not consistent with the fourth amendment.

And on the empirical side, California is an outlier.

All the other States--

Justice Stevens: May I... may I ask you--

Mr. Long: --and the Federal Government--

Justice Stevens: --this question?

Part of your appeal of your case is, you talk about the corporate offender or tax dodger, something like that.

It seems quite unreasonable, I agree with you.

But what if you defined the class much more narrowly and limit it to people who have been convicted of violent crimes of a very serious nature and so forth, and said, as to those, they can have the totally suspicionless search?

Would that--

Mr. Long: --Well--

Justice Stevens: --be possible?

Mr. Long: --I... one of the things we wanted to make... I think there are many things that States can do.

They could certainly--

Justice Stevens: But I wonder whether--

Mr. Long: --there's the possibility of--

Justice Stevens: --whether you think they could do that.

Mr. Long: --There's the possibility of individual determinations, based on the individual circumstances.

If you went--

Justice Stevens: Well, what I'm--

Mr. Long: --category by--

Justice Stevens: --I want to see if there is a way that the class could be defined narrowly, because I want to ask the other side if they would allow the search for any ex felon, for example.

You could write it in a way that seemed obviously too broad.

But is--

Mr. Long: --Right.

Justice Stevens: --there a narrower class--

Mr. Long: Well--

Justice Stevens: --that you think would be acceptable?

Mr. Long: --I think this could be much narrower.

And, in my view, it would become a much closer constitutional question if it were limited to certain crimes where the legislature or the State made a finding that there's a particular need to have--

Justice Stevens: Say you were a--

Mr. Long: --suspicionless--

Justice Stevens: --terrorist, for example.

Mr. Long: --And--

Justice Stevens: Just limit it to terrorists, convicted terrorists.

Mr. Long: --Yes, perhaps convicted terrorists.

You know, that... and it... that's very different from what we have here, because--

Justice Ginsburg: --What about drug offenders, given the high rate of recidivism?

Mr. Long: --Well, I... you know, we... I think you would have to see the facts of that case, but if they made a finding that,

"Because of the nature of drug offenses, we need suspicionless searches rather than simply reasonable suspicion, and we need police officers, not parole officers. "

--and there could be other regulations.

The Federal regulations, we think, are a model, really.

They have lots of limitations on--

Justice Scalia: --Mr. Long, is it... is it fair to compare California to other States?

The assumption would have to be that other States grant parole as liberally as California does.

Maybe California has made the decision,

"We have too many people in prison. "

"We're going to let a lot of them out, but we're going to keep them on a very tight leash. "

Why shouldn't it be able to do that +/?

to have tighter controls, but let out many more people on parole, which is... which is exactly what I think they're doing.

Mr. Long: --Well, and I... I think they can have tighter controls, Your Honor.

They can... they can have... they could have... they could make this a special condition of parole--

Justice Scalia: But my only--

Mr. Long: --rather than a general condition--

Justice Scalia: --point is--

Mr. Long: --of parole.

Justice Scalia: --the fact that other States aren't as tight doesn't prove anything, because other States--

Mr. Long: Well--

Justice Scalia: --may not be--

Mr. Long: --Well--

Justice Scalia: --be trying to do the same thing--

Mr. Long: --I mean--

Justice Scalia: --to empty their prisons--

Mr. Long: --This Court has said, generally, that what the Court has found to be reasonable for one State is reasonable for all.

And when a practice is not well established... and here, it's far from well established; California's virtually unique... the Court has taken that into account for--

Justice Ginsburg: Suppose you were in a halfway house, and the State says,

"We're creating a status. "

"One is, you're a prisoner. "

"Another is, you're a halfway house. "

"Another is, on your... parole. "

"But we want to subject you to suspicionless searches at... in all three stages... prison, halfway house, parole. "

Could they do it for the halfway house?

Mr. Long: --Well, they might... halfway houses, as I understand it, Justice Ginsburg, are largely now a thing of the past.

But if the idea is you would actually be in a custody situation at night, perhaps in lockdown, then perhaps Hudson against Palmer would come into play--

Justice Ginsburg: This person goes--

Mr. Long: --which--

Justice Ginsburg: --out to work, comes back at the end of the day, and is checked in.

Mr. Long: --And so, your hypothetical is, Could there be suspicionless searches by--

Justice Ginsburg: Yeah, while the--

Mr. Long: --police officers--

Justice Ginsburg: --while the--

Mr. Long: --at work?

Justice Ginsburg: --The person who is in this semi custody state, he's going to work, and, while he's at his workplace, the police officer shows up and says,

"I'm going to pat you down, and then I'm going to-- "

Mr. Long: It's--

Justice Ginsburg: "# see if you have drugs. "

Mr. Long: --It's a... it's a harder case.

Again, our bottom line is, there would need to be some limitations on that individual officer's discretion.

That's the core of the fourth amendment.

If there are no further questions, I'd like to reserve the balance of my time.

Argument of Ronald E. Niver

Chief Justice Roberts: --Thank you, Mr. Long.

Mr. Niver, we'll hear now from you.

Mr. Niver: Mr. Chief Justice, and may it... may it please the Court--

Alarmed by the State rate of recidivism and revocation of the more than 100,000 parolees, California enacted a statute which authorized the search of a parolee based solely on his status as a parolee.

We submit that such a search is reasonable under the fourth amendment.

As this Court held recently in United States versus Knights, to determine the validity of the search we balance the State's need to search against the privacy interest affected.

Here, the need is overwhelming, and the privacy interest is dramatically reduced.

Turning first to Petitioner's expectation of privacy, it is greatly diminished.

Even if it exists, it is far less than that enjoyed by the average law abiding citizen.

No one outside the confines of a prison has a lesser expectation of privacy than a parolee.

Chief Justice Roberts: Why is that?

Doesn't that kind of beg the question?

I mean, if we say he's got the normal fourth amendment rights, his... I mean, the expectation of privacy analysis seems to me to be totally circular.

Mr. Niver: That's what the--

Chief Justice Roberts: You say he doesn't have an expectation of privacy, so it's not protected.

Well, if we say he does have a... if we say it is protected, then he does have an expectation of privacy.

Mr. Niver: --Well, this Court spoke to that in Knights and said, unanimously that the... in Knights, it was a probation condition, but I think that it... obviously, the same analysis applies here... that the imposition or acceptance of a... of a search condition by a parolee or a probationer results in the severely diminished expectation of privacy enjoyed by the parolee or probationer.

And this Court said that unanimously in Knights.

Chief Justice Roberts: Well, Knights involved a situation where reasonable suspicion was required, so it addressed the problem that Mr. Long has of unbridled discretion.

You still had to have an articulable reasonable suspicion with respect to the individual.

Mr. Niver: That is true, Your Honor, but the threshold question was whether he had an expectation of privacy at all, or to the... the extent of that expectation of privacy.

And the Court, in Knights, before it discussed the balance, had to identify the factors in the balance.

In terms of the probationer's interest in that case, by virtue of the search condition, this Court said that his interest in... his expectation of privacy was severely diminished, and left open--

Chief Justice Roberts: Why... and why was his expectation of privacy severely diminished?

Mr. Niver: --Because of the parole's... excuse me... the probation search that was imposed upon him by virtue of the--

Chief Justice Roberts: Because of the very practice that's being challenged here today, right?

Mr. Niver: --Well, yes.

Chief Justice Roberts: Because he saw something... you... he signed something that said, "You're subject to searches".

Well, that's what is at issue.

It seems to me that it's... I guess I've said it before, he's... it's begging the question to say,

"You can do this, because he has a diminished expectation of privacy. "

How far do you push this?

Can you have parolees come in and take a lie detector test every week?

Do they have... do they have diminished expectation with respect to their fifth amendment rights?

Mr. Niver: With regard to the fifth amendment rights, if they are not in custody, then... or even if they are... I don't think that that would necessarily... the... any expectation of privacy would preclude the imposition of a lie detector test, no.

Chief Justice Roberts: Was that a yes, you can have them--

Mr. Niver: Yes, Your Honor.

Chief Justice Roberts: --You can.

Mr. Niver: Yes.

But in this case, the--

Justice Scalia: Is--

Chief Justice Roberts: What about--

Justice Scalia: --Is--

Chief Justice Roberts: --What about--

Justice Scalia: --Is that right?

I mean, even in prison, I... what... I'm not sure you could even do that if they were still in prison.

Can you subject people in prison--

Mr. Niver: --Well, of course, that would not be a fourth amendment claim.

Justice Scalia: --No.

No, I--

Mr. Niver: It would be a different--

Justice Scalia: --The Chief Justice was trying to get out of the fourth amendment into the fifth.

Mr. Niver: --That failing... well, in terms of the lack of a precedent from this Court, you know, at this point we can only speculate, but it seems to me that if a person can be required to submit to a drug test by virtue of the status as a parolee or probationer, I don't think that it is an extravagant step to say that they could be required to submit to an--

Justice Stevens: Would you say the same thing if the offense he had committed was tax evasion or price fixing or speeding?

Would the... would a person on parole for any one of those offenses have... be subject to the same risk of a suspicionless search?

And would it be justified?

Mr. Niver: --Suspicionless search?

Justice Stevens: Well--

Mr. Niver: Where we're back to--

Justice Stevens: --applying this statute to--

Mr. Niver: --Yes.

Justice Stevens: --a price fixer, tax evader, speeder.

Do you think it's justified?

Mr. Niver: If he's on parole, Your Honor, if he's... look, this applies to parolees in California who have been convicted of felonies, served time in prison, and have been--

Justice Stevens: And if it's to be--

Mr. Niver: --released on parole.

Justice Stevens: --applied to the tax offender and so forth, how about just applying it to all ex felons?

Would that be permissible?

Mr. Niver: On parole, or not on--

Justice Stevens: No, just the very fact that there's... they're an ex felon.

And let the person know, at the time of his discharge from prison, that,

"This is one of the things that the State is going to exact from you as punishment for your crime. "

Mr. Niver: --If the person is on parole, the answer--

Justice Stevens: No, I'm saying--

Mr. Niver: --Oh--

Justice Stevens: --he's not on parole.

Mr. Niver: --he's no longer on parole?

Than the entire balance changes.

The reduction of the expectation of privacy--

Justice Stevens: But I'm hypothesizing a case in which the law will destroy the expectation of privacy, because it will provide that all ex felons are subject to search.

So, they would know, the same as a parolee now knows, he's subject to search.

Would that be valid?

Mr. Niver: --My answer to that is, it would not be valid, Your Honor, because a person, having served his time on parole, the State's overwhelming interest in supervision has ended.

The State has determined that that person, having successfully completed his period of parole--

Justice Stevens: But... so you don't--

Justice Scalia: Most--

Justice Stevens: --rely on--

Justice Scalia: --Most States--

Justice Stevens: --the fact that--

Justice Scalia: --don't let felons vote.

I mean, that's a punishment that they impose after they're out of prison.

Mr. Niver: --Yes, but this is not... yes, Your Honor, but this is really not about punishment, this is about supervision.

And if a parolee has successfully completed this parole, has been discharged from parole, then the balance--

Justice Stevens: --But then we're not relying on the elimination of the expectation of privacy, because, under my hypothetical statute, the ex felon would know he's subject to it.

So, it has to be something other than the absence of an expectation of privacy.

Is that correct?

Mr. Niver: --Not... a person who is no longer on parole, there is no longer the overwhelming State interest in supervision.

The balance changes.

Our position would be that that would not be a permissible search.

Justice Scalia: It seems to me that the principal difference, Mr. Niver, is that when he's on parole, it's in lieu of being in jail.

If that's not the difference, you don't persuade me.

He has voluntarily accepted the parole in exchange for his getting out of jail.

And he'd be in worse condition if he were in jail.

That's what, seems to me, makes the difference.

Mr. Niver: Well, that's... I think that's exactly right, Your Honor.

The ex parolee, no longer on parole, is no longer in custody of the... of the California Department of Corrections, there is no longer an overwhelming need to supervise the person, who, having successfully completed parole, is presumptively not the threat to society that he was that he... when he was a parolee.

The balance changes, and such a condition... that is to say a suspicionless search of an ex parolee... I think would offend the fourth amendment.

Justice Ginsburg: Mr. Niver--

Justice Breyer: But what do you achieve by this system that you have that you couldn't achieve by a system that more carefully worked out the rules and conditions of a random search?

I mean, rules, so that you avoid the totally discretionary element.

And if you want to have management consultants, as I was imagining, have 'em.

They're not just going to tell you,

"Go and ask anybody to search anytime he wants. "

They'll have a system worked out.

So, why not at least require you to think it through that much?

And, otherwise, it is unreasonable.

Mr. Niver: Well, we have disputed Petitioner's position that this is a search, although suspicionless, that it is... that discretion is not circumscribed is our position.

And it is, because--

Justice Ginsburg: --Well, are there manuals... are there any... here is the cop on the beat.

Mr. Niver: --Yes.

Justice Ginsburg: He sees someone that he knows is a parolee.

Is there any instruction that he's been given so that his discretion can be guided instead of rudderless?

In practice in California, are all--

Mr. Niver: In... I'm sorry, Your Honor.

Justice Ginsburg: --Yes.

What is the practice?

Mr. Niver: In practice, the... a search... a parole search may not be arbitrary, capricious, or conducted solely for the purpose of harassing--

Justice Ginsburg: I'm asking you about what instruction, what training, if you know, are officers given?

Or are they given no training, just the law that says, "You can search any parolee"?

Mr. Niver: --No, they are not told that they may search any parolee, Your Honor.

Rather, they are told that the search must be to rehabilitate, reform, or have some other law enforcement purpose.

And they--

Justice Souter: Okay.

The officer says,

"I'm searching to see whether the person has any evidence of crime on him. "

For example, whether he has any drugs on him.

Law enforcement purpose, supervisory, I suppose.

They want to know whether their... whether their parolees are committing offenses.

And yet, that reason would apply to everyone virtually all the time.

So, it doesn't seem to be a limitation at all.

What... am I... am I missing something?

Mr. Niver: --It does apply... it is a limitation.

It is not a limitation that would protect the expectation of privacy of a nonparole--

Justice Souter: Well, how does the limitation work?

The guy is on 1st Street, and an officer says, you know,

"I recognize this person is a parolee, and I have a law enforcement objective. "

"Is the person committing a crime? "

"Is the... is the person a recidivist? "

"Is the person violating parole? "

So, he searches him.

The person gets to 2nd Street, another officer does the same thing.

Three hours later, a third officer does the same thing.

In each case, it seems to me, their justification would not fall afoul of the arbitrary, capricious, or harassment standard.

It's not coordinated.

They have a... both a parole and a law enforcement objective.

Why is there any limitation, then, on the right to search?

Mr. Niver: --If these are, as I understand Your Honor's hypothetical, three independent searches--

Justice Souter: Uh huh.

Mr. Niver: --to the extent that that could happen, and I suppose it could, the... again, the limitation is that it be, as Your Honor states, for a valid law enforcement purpose, and it would require--

Justice Souter: No.

No, but let's get behind the rhetoric.

Is there any reason my hypothetical could not, in fact, turn out to be true?

Mr. Niver: --There is no--

Justice Souter: Apart from the unlikelihood of all those police officers out there.

But, leaving that aside, is there... is there any reason, in the standard, that my hypothetical could not be true?

Mr. Niver: --Well, Your Honor, no, there is no reason, but it would... it requires more than testimony by the officers.

If the officers at... each testified that they conducted the search, they're... also requires a finding of fact by the trial court that the searches were, in fact, for a valid law enforcement purpose.

Justice Souter: Okay.

I mean, let's assume the police are telling the truth, and the judge says, "Sure".

So, there is no limitation.

And it sounds to me, then, as though about the only limitation that would be enforceable would be the limitation against harassment.

If one officer did it every 15 minutes to the same person, or if there were a departmental systematic policy saying, you know, "Get so and so", that I can understand as being a limitation.

But I don't see any other limit.

Mr. Niver: Well, the limitation is, as Your Honor states, if it's a... for a valid law enforcement purpose or to promote rehabilitation or--

Justice Souter: No, I realize--

Mr. Niver: --recommend--

Justice Souter: --but do you--

Mr. Niver: --But--

Justice Souter: --do you agree that there is not any practical limitation, other than the harassment limitation?

Mr. Niver: --I... well, that harassment limitation is sufficient to protect the residuum of an expectation--

Justice Souter: Well, maybe--

Mr. Niver: --of--

Justice Souter: --maybe it is.

But what's the answer to my question?

Is that, in practical terms, the only limitation?

Mr. Niver: --It is a... but it... yes, Your Honor, that is the protection.

Justice Souter: Okay.

Justice Scalia: I thought you said that maybe cavity searches would not... would not be allowed without some special reason for them.

And that wouldn't necessarily be harassment.

Mr. Niver: I think it depends on the circumstances of the search.

Justice Scalia: Yes--

Mr. Niver: There's an--

Justice Scalia: --I mean--

Mr. Niver: --overarching principle here, under the fourth amendment, that the search be reasonable, in terms of manner and scope.

Justice Scalia: --Okay.

Mr. Niver: That applies equally to a suspicionless search as it would to a search based on individual suspicion.

To that extent, it's really not an issue that arises from the fact that this is suspicionless.

Justice Ginsburg: What would be arbitrary and capricious?

You told us harassing would be the repeated searches by the same officer.

Mr. Niver: Or an--

Justice Ginsburg: What--

Mr. Niver: --Or a needlessly intrusive search, as has been just described, or--

Justice Souter: Well, let's assume... let's assume that the cavity search is demanded at the bus station, and the officer says,

"We know that drugs get transported by people who ingest them in the balloons, and they get on buses and they travel back and forth from city A to city B.. "

Any reason that that would run afoul of arbitrary and capricious?

Mr. Niver: --Depends on the circumstances of the search.

Again, Your Honor--

Justice Souter: All I'm telling you is, he's at a bus station.

The facts are that a lot of people who travel on buses are drug couriers.

This person is a parolee.

Would that run afoul of the... of any arbitrary and capricious limitation?

Mr. Niver: --It would, for example, if it were done in public view.

If the officer didn't, then--

Justice Souter: Well, sure, but the officer says,

"All right. "

"I'm taking you down to the station for a cavity search. "

Mr. Niver: --Again, the office... if the officer did it under those circumstances, it's for the finder of fact to decide whether it was done for a legitimate purpose or--

Justice Souter: Well, you're... I'm asking you to be the finder of fact for me.

This is the officer's explanation.

This is the factual... set of factual premises on which he acts.

Has he violated the arbitrary and capricious limitation?

Mr. Niver: --If, in fact, it was for the purpose that you state, a legitimate law enforcement purpose, and he has been removed from public view, and it's reasonable, in terms of manner and intensity, then it would be permissible.

Justice Stevens: I have one--

Justice Scalia: Well, suppose you couldn't--

Justice Stevens: --I have one--

Justice Scalia: --you couldn't--

Justice Stevens: --I have--

Justice Scalia: --conduct cavity searches without some special reason, even in prison.

Wouldn't that be... isn't there some remnant of a fourth amendment right in prison that you cannot subject, you know, the whole cellblock to cavity searches?

Mr. Niver: That would depend, Your Honor, on the prison, the prison regs, the State.

I can't answer that question--

Justice Souter: Well, I--

Mr. Niver: --in--

Justice Souter: --I thought the assumption of your answer to my question a moment ago was that there was no such limitation, so far as California is concerned.

Mr. Niver: --No, there is a limitation, in terms of manner and scope.

Justice Souter: Well, sure.

But we... the manner, in this case, is, they take him down to the station, so that they're not going through this in the middle of a crowded bus terminal.

But the point of the question was, any parolee at a bus terminal could be subjected to this demand for search, and I thought your answer was, yes, he could be.

And now, in response to Justice Scalia's question, you're saying,

"Well, there may be some limitation. "

So, which is it?

Mr. Niver: That if the search is a... for a valid law enforcement purpose, and it is reasonable in scope and manner, then it is a permissible parolee search, in California.

Chief Justice Roberts: --Does it depend... I mean, what if he's on parole for transporting drugs in balloons from bus stations?

Does that make a difference +/?

as opposed to, he's on parole for tax fraud.

Mr. Niver: It certainly might, Your Honor.

And, again, that would be... that... an additional bit of evidence to present... to be presented to the suppression court to determine whether the scope of the search was reasonable.

Justice Ginsburg: --But all this is on a case... would be on a case by case basis.

There are no going in guides for the officer on the street.

Mr. Niver: It's necessarily determined on the... any search has to be decided... the reasonableness of any search has to be decided on a case by case basis.

Justice Scalia: Do we--

Justice Breyer: But the reasonableness here would be unreasonable, unless there are some checks.

We're talking about suspicionless searches.

And you could have checks.

But what about saying... why is it reasonable to do it without any rule based controls on the behavior of the police?

That's the question.

Mr. Niver: Okay.

And the answer is, in terms of the competing interests, the lowered expectations--

Justice Souter: Okay.

But what interest does it serve not to have some rules, manuals, regulations that help make sure it really is random, or help make sure it isn't harassing, or help make sure that it's serving the very ends that you hope to serve with the suspicionless searches?

Mr. Niver: --If a State wishes to adopt such rules, those would... may comply with the fourth amendment.

The question is not, What could be done?

The question is, What was done?

The question is whether California's rule, which permits parolee searches that... with the... absolute prohibition of arbitrary, capricious, and harassing suits, and which must be conducted under the fourth amendment, in terms... reasonable, in terms of time, place, manner, and scope... the question is whether that system, the California scheme, is constitutional under the fourth amendment.

And here, the system was designed to address an overwhelming problem that the Court, this Court, has well defined.

The... over 100,000 parolees are on the street at any given time.

Almost 90,000 of them will be revoked in any given period.

They... the California parolees require intense supervision.

The statute, 3067, was enacted to permit that kind of intense supervision.

And the protection afforded to the parolee, in terms of a requirement of a proper purpose--

Argument of Jonathan L. Marcus

Chief Justice Roberts: Thank you, Mr. Niver.

Mr. Marcus.

Mr. Marcus: Thank you.

Mr. Chief Justice, and may it please the Court--

Concerned about the threat that parolees pose to public safety, the California Legislature, in 1996, authorized both police and parole officers to search them without individualized suspicion.

Whether evaluated under the special needs doctrine applied in Griffin, or the totality of the circumstances approach applied in Knights, the search of Petitioner in this case, pursuant to his search condition, was reasonable under the fourth amendment.

Chief Justice Roberts: Do we have--

Justice Kennedy: But not the consent--

Chief Justice Roberts: --to decide--

Justice Kennedy: --not the consent approach, I take it.

I didn't get an opportunity to ask the counsel who argued just previously.

Seemed to me that he argued consent when he answered Justice Stevens's question about the tax evader.

But he argued the overwhelming practical needs when he argued the rest of the case.

And I thought I saw some tension in the argument there.

And I take it the Government does not embrace the consent argument?

Mr. Marcus: No, we do embrace it.

We... but we briefed--

Justice Kennedy: But you--

Mr. Marcus: --the--

Justice Kennedy: --just--

Mr. Marcus: --It--

Justice Kennedy: --put it in number--

Mr. Marcus: --We--

Justice Kennedy: --you put it--

Mr. Marcus: --We--

Justice Kennedy: --in number three?

Mr. Marcus: --Right.

It--

Justice Kennedy: In--

Mr. Marcus: --well, primarily... for a couple of reasons.

First, Your Honor, the California Supreme Court has not had a chance to interpret 3067(a), you know, after the Reyes decision.

They weren't interpreting it there.

And so, they haven't had a chance to revisit their ruling that, as a matter of State law, it's not... there's no consent when it comes to a parolee.

And that's... so, we thought maybe that would be a reason this Court, prudentially, wouldn't want to reach that issue.

And, secondly, the... while the joint appendix contains a portion of the agreement that the Petitioner signed, it doesn't contain the whole content of the agreement.

The appellate record doesn't contain the whole content of the agreement.

So, we didn't--

Justice Kennedy: --But in your view, if the consent was straightforward in the documents, would that be the strongest argument or the weakest argument?

Mr. Marcus: --Well, I think--

Justice Kennedy: I mean, I take you'll win on any--

Mr. Marcus: --We--

Justice Kennedy: --argument--

Mr. Marcus: --Right, we think all--

Justice Kennedy: --you can take.

Mr. Marcus: --we think all three arguments are strong.

I don't think... one isn't necessarily stronger than the other.

And... but... and this Court... but if the Court... I mean, the Court certainly, at a minimum, can look at the statutes under California law, and can certainly conclude from the statutes that if a... if some... if an inmate doesn't sign the papers, he stays in prison until his sentence basically terminates.

And then... and then, at that point, when he's released, this... another provision, Section 3060.5, kicks in, and his parole... his parole is revoked.

And he eventually will... he ultimately will serve his whole term of parole in prison, so that the Court can see by the statutes that it is, effectively, a choice, statutorily, that he... someone who does not want to be on parole does not have... does not have to sign the condition, and will never go on parole.

Justice Ginsburg: Mr. Long seemed to have... tell us something different about that.

It's... they had... they must go out.

He seemed to say they didn't have the choice of staying in.

Mr. Marcus: Well, I think it's fairly clear, Your Honor, under... if you look at the appendix to the Petitioner's brief, if you... if you look at a combination of Section 3067(b), and then... which--

Justice Scalia: I think he said he was unaware of anybody who was dragged out kicking and screaming, if I--

Mr. Marcus: --Right.

And then--

Justice Scalia: --recall his answer--

Mr. Marcus: --and if you look at--

Justice Scalia: --on that.

Mr. Marcus: --3067(b), and then you also look at... 3067(a) and (b), and then you look at Section 3060.5, which provides for revocation if the... if the inmate is... or the parolee is unwilling to--

Justice Ginsburg: But it really--

Mr. Marcus: --sign the--

Justice Ginsburg: --it really isn't.

Mr. Marcus: --agreement.

Justice Ginsburg: It's... this is not like you sign an agreement and you're... you can do it or you can not do it.

I mean, this is a real Hobson's choice, isn't it?

Mr. Marcus: Well, you know, again, if you think that--

Justice Ginsburg: You can't--

Mr. Marcus: --there--

Justice Ginsburg: --negotiate, "I don't"--

Mr. Marcus: --There--

Justice Ginsburg: --"# want this part".

Mr. Marcus: --There undoubtedly are adverse consequences to not signing the agreement.

Chief Justice Roberts: --Could you--

Mr. Marcus: But--

Chief Justice Roberts: --waive your... could you waive--

Mr. Marcus: --But--

Chief Justice Roberts: --your eighth amendment rights?

You know, if your parole's revoked, you're going to go back into a very cruel and unusual prison, not the one you left.

Mr. Marcus: --Well, I mean, I think... I think the test would be whether it's... whether it's reasonably the consent... what they're asking you to agree to is reasonably related to the purposes of punishment.

And, in this case, the... you know, the supervision of the parolee, rehabilitation, protection of public safety.

And so, we think the consent argument works very well here.

But, if I could, I'd like to also address our arguments under the totality of the circumstances and special needs.

Faced with a serious recidivism problem, California has made the reasonable judgment that subjecting parolees to suspicionless searches is necessary to protect public safety and to promote rehabilitation.

Justice Alito: What if it's the case--

Mr. Marcus: But--

Justice Alito: --that this program would allow some searches that are... that violate the fourth amendment, but that this particular search would not?

How closely can we focus just on what happened here, or do we have to consider all the... all the types of searches and the circumstances of searches that the California program might permit?

Mr. Marcus: --Well, I... no, I mean, I think typically this Court applies a very, sort of, narrowly tailored approach to fourth amendment questions, and focuses narrowly on the context in which the search was conducted.

In this case, for example, you wouldn't... you wouldn't have to reach the question of whether a search of a home was constitutional.

This... I mean, the question here is whether a search of the Petitioner on a public street was constitutional.

And the Court does typically limit its fourth amendment cases to the facts presented.

So... but, at the same time, in analyzing that, I think you do have to consider what the fourth amendment standard is.

And we believe the fourth amendment does impose... the fourth amendment itself imposes restrictions on the discretion of police officers and parole officers that are meaningful, that... as the Reyes Court said, there are restrictions on the timing, the frequency, the duration, and the oppressiveness of the search.

So, police officers and parole officers are on notice that courts will review suspicionless searches very carefully.

They're on notice that there are limits to what they can do.

And they're--

Justice Stevens: But following--

Mr. Marcus: --on notice that--

Justice Stevens: --up on Justice--

Mr. Marcus: --if a search is--

Justice Stevens: --Alito's thought, supposing there were no restrictions whatsoever, but this particular search didn't seem very offensive.

Would you still defend it?

Mr. Marcus: --If there were no... no, we... no, we think there are... the fourth amendment imposes restrictions... time, place, and manner restrictions... on the suspicionless searches.

Justice Scalia: No.

Mr. Marcus: And so, that--

Justice Scalia: He's asking you, I think, Justice Alito's question,

"Do we have to get into that? "

So long as this one's okay, why do... why do we have to get into whether there might be some other ones that aren't okay?

Mr. Marcus: --I... that's correct.

I don't... I mean, I--

Justice Stevens: And it--

Mr. Marcus: --I think you just--

Justice Stevens: --it was assumed California--

Mr. Marcus: --Right.

Justice Stevens: --didn't say if they had protection against harassment and so forth.

Suppose they just said,

"Cart blanche, you can search any parolee at any time, any place. "

And then you'd ask whether this search was reasonable.

Would--

Mr. Marcus: Right.

And--

Justice Stevens: --that be--

Mr. Marcus: --I think, in determining that, you would... in determining it and looking at the facts of this case, you would... you would apply a fourth amendment standard to determine whether this search was objectively reasonable.

And you would look at factors like the time, place, frequency, and manner to determine whether a search was, in fact, reasonable--

Justice Stevens: --So, it would uphold this.

Mr. Marcus: --and objective--

Justice Stevens: There's--

Mr. Marcus: --objective--

Justice Stevens: --no matter now unreasonable the California statute might be in other applications.

Mr. Marcus: --That's correct.

And it's to see whether it's objective... whether the search in this case was objectively related to the purposes of supervision, to protect public safety, and to promote rehabilitation.

That, we think, is the test under the fourth amendment.

And while Petitioner points out that there are a hundred cases out there where the standard, you know, hasn't been used to throw out a search, at the same time, he hasn't pointed to any cases where a prosecution has been based on an abusive search that this standard has been too toothless to throw out.

And we think that's significant, given that this type of condition has been in place for over 20 years for probationers, since the Bravo decision in 1987.

And the parole condition has been in place since 1996, when the Legislature authorized this and made a considered decision to switch from a reasonable suspicion standard to a suspicionless standard for parolees.

Justice Kennedy: The Government... is the Government of the United States somewhat behind the State of California?

It's not efficient in... as efficient as California in supervising its parolees?

Because you don't have this rule.

Mr. Marcus: We don't have this program.

There are... I mean, District Courts have the authority to impose a suspicionless search condition.

And some have.

I think the important thing to keep in mind here is that this is a... the Court has traditionally given a lot of deference to States in dealing with convicted felons in their criminal justice system, in making sentencing determinations, reasonable sentencing determinations, as this Court emphasized in the Ewing decision.

And so, California clearly has a big problem on their hands.

The recidivism rates are demonstrated, they're in the record.

The... California was responding to those high recidivism rates.

They were also responding to some high profile crimes involving parolees.

And the... and, on top of that, we do have a brief that's submitted by 21 States who say that they do need this authority to effectively supervise parolees.

Justice Ginsburg: Has--

Mr. Marcus: But--

Justice Ginsburg: --the recidivism rate gone down in the years since the Reyes decision, since this is suspicionless search, as opposed to reasonable suspicion?

Mr. Marcus: --Well, I... I mean, I'm not sure if the studies have been... statistics have been, sort of, documented up to this... to this date, but I think it's fair to say that it would be difficult to draw conclusions from those statistics, because, of course, this gives... this provision gives the California parole and police officers more authority to conduct searches; and so, there's... to the extent it's increasing the detection of crime, and so more people are actually being, you know, put back in prison on a parole violation or a criminal violation, it wouldn't necessarily mean that it's... this isn't, you know, being successful in reducing recidivism, because there's--

Justice Souter: Do--

Mr. Marcus: --I mean, there's that side to it, too.

Justice Souter: --Even apart from the... what... the lack of evidence for any change since the Reyes decision, do we have any empirical evidence, perhaps involving a control group, about the likelihood of the... this liberal search policy in reducing recidivism?

Mr. Marcus: May I answer the question, Your Honor?

Chief Justice Roberts: Go ahead.

Mr. Marcus: I think, you know, traditionally this Court has been very deferential to State decisions on... you know, on efficacy, on whether a particular program is going to be efficacious... I mean, cases like Martinez Fuerte and the Sitz decision involving checkpoints for drunk driving... in a court.

Even with, you know, very strong, you know, low efficacy rates... in, you know, a program that's showing very low efficacy rates, the Court said that these are judgment that... judgments that the States need to make, and they ought to be given a lot of deference, even if, you know, their... you know, the numbers, you know, of... don't show, by clear and convincing proof, that the problem isn't being ameliorated.

Rebuttal of Robert A. Long, Jr.

Chief Justice Roberts: Thank you, Mr. Marcus.

Mr. Long, you have 2 minutes remaining.

Mr. Long: In answer to Justice Alito's question, this search is unconstitutional, because the officer was completely at liberty... he had complete discretion to decide whether to search.

And it would not be acceptable if California said,

"You can search anybody on the street. "

if the answer was,

"Well, it wasn't a particularly invasive search. "

Granted, parolees have far less fourth amendment rights than others, but this is so much the core of the fourth amendment.

This is what the framers wrote the fourth amendment to stop, these general warrants and writs of assistance.

One--

Justice Scalia: But we--

Mr. Long: --consent--

Justice Scalia: --we normally don't look into the mind of the officer to decide whether his action was okay or not.

Mr. Long: --Well, and we're not asking you to look into the mind of the officer.

It's... California's system, it's quite clear... they admitted it here... leaves it up to... the officer can have any reason for doing the search.

It's arbitrary, in the sense this Court would use, but not California.

On consent, very quickly, footnote 16 of our reply brief, the California Supreme Court has said repeatedly that... including very recently, since this Section 3067... that parole is not a matter of consent; it is imposed on you.

This is a question of State law.

Perhaps this Court would read the State law differently.

But, as the Court said in Griffin, the State Supreme Court is the last word on the questions of State law.

As to abuses, there are a number.

One that I'll just mention, the California Supreme Court has held that it's perfectly okay... if the officer knows somebody in the house is on parole or probation, they can use that as a lever to go in and search to try to find evidence about somebody else who's in the house.

That is permissible under the California standard.

But the bottom line here is that this type of search regime is at the core of the prohibition of the fourth amendment.

It's what the framers wrote the fourth amendment to prohibit.

So, if parolees have any fourth amendment rights, other than, you know, an essentially useless arbitrary and capricious standard that's never going to work, the fourth amendment has to prohibit this search.

There are many other things the States can do.

They have many options.

This is at the endpoint on the spectrum.

Thank you.

Chief Justice Roberts: Thank you, Mr. Long. The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Grubbs - Oral Argument

Fri, 09 Jan 2009 14:48:54 +0000

Case:

United States v. Grubbs

Media File:

04-1414_20060118-argument.mp3

Related Transcript:

2005_04_1414_argument.xml

Transcript:

Argument of Michael R. Dreeben

Chief Justice Roberts: We'll hear argument first today in No. 04-1414, United States v. Grubbs.

General Dreeben.

Mr. Dreeben: Mr. Chief Justice, and may it please the Court--

The postal inspectors in this case applied for a warrant to search respondent's property.

The warrant that they obtained particularly described the place to be searched and the things to be seized.

It was issued based on an affidavit that informed the magistrate judge that a videotape containing child pornography that respondent had ordered through the mail and had paid for in cash was going to be delivered to respondent's house and that the warrant would not be executed until the delivery had taken place.

The Ninth Circuit held that the execution of this warrant, which occurred after the delivery that the postal inspectors represented would occur had in fact happened, violated the Particularity Clause of the Fourth Amendment.

The Ninth Circuit's opinion is wrong because the Particularity Clause of the Fourth Amendment addresses two specific topics, the place to be searched and the persons or things to be seized.

It does not address the time of execution of a warrant, which the Ninth Circuit impermissibly read into the Fourth Amendment in violation of its text.

The Ninth Circuit held, therefore, that because the warrant was not in accordance with the Particularity Clause, this search was equivalent to a warrantless search and that all fruits of the search had to be suppressed.

Justice Souter: I think, Mr. Dreeben, at the end of the day, I agree with you on the particularity argument, but do you take the... does the Government take the position that the... that the... that a valid warrant need not contain an indication of the time within which it may be served, executed?

Mr. Dreeben: That's right, Justice Souter.

In the Government's view, the Warrant Clause specifically addresses those things that need to be on the face of the warrant.

Justice Souter: As far as--

Justice Kennedy: What would prevent the issuance of just a blanket warrant?

We have a warrant for this... for this premises to be searched.

Mr. Dreeben: What would prevent the valid execution of a warrant that had no time limits whatsoever would be the requirement that a warrant must be supported by probable cause.

And if agents executed a warrant at a time at which there was no probable cause, for example, because they executed it before the delivery had taken place or they executed it after a time at which probable cause had become stale, the search would be unreasonable and the fruits of the search would probably have to be suppressed.

Justice Scalia: I suppose that a warrant like a... like a contract has a... a reasonable life.

Don't you think a warrant expires if it does not have a concluding date?

You think it goes on forever and ever and ever?

Don't you think a warrant just lasts a reasonable time?

Mr. Dreeben: I think it absolutely just lasts a reasonable time, Justice Scalia, and the reason why there is very little law and very little litigation on this is that since the 1917 statute that Congress originally wrote to provide for the issuance of Federal search warrants, it's provided for a 10-day execution period, and that 10-day limit has been contained and continued in the Federal Rules of Criminal Procedure.

So in the ordinary--

Chief Justice Roberts: Mr. Dreeben, I understood you to say a short while ago that if it were executed before the triggering event, it would be invalid because there was no probable cause.

Mr. Dreeben: --Well, I... I don't want to say that there's no probable cause for the warrant.

Chief Justice Roberts: No, you don't because then the warrant shouldn't have issued.

Mr. Dreeben: No.

There... there is probable cause that the magistrate has to believe that the videotape, which was one of the items to be seized, would be found at the premises at the time that the search was to be executed, which was represented in the affidavit to be after the delivery takes place.

If, in fact, the warrant is executed at a time before the delivery takes place, then the warrant has failed to conform to the probable cause that supported it and the search would be unreasonable.

Justice Scalia: Even... even if the warrant did not specifically say that it was an anticipatory warrant and that... and that you can only execute it after the delivery?

Mr. Dreeben: That's right, Justice Scalia, because there is an independent requirement that probable cause must exist at the time of the execution of the warrant.

Officers are--

Justice Scalia: But I thought that's supposed to be a... a magistrate's determination.

Mr. Dreeben: --There are two separate things that are going on.

One is what the magistrate must do at the time that he issues the warrant.

The magistrate must find that there is probable cause to believe that offense... an offense has been committed, is being committed, or is about to be committed, and that the items that the warrant is going to request to be seized will be present at the location at the time of execution.

And the magistrate in this case was easily able to make those determinations based on the warrant affidavit that was submitted to him.

But there is an additional requirement of reasonableness, that officers may not execute a warrant, even if it was validly issued, if they become aware of facts that would tell a reasonable officer--

Justice Kennedy: If they become aware, but the... it's a big leap from that to say that they must make their own determination of probable cause.

Mr. Dreeben: --Well, I... I think, Justice Kennedy, the easiest example to... to see why this--

Justice Kennedy: You... you indicated a warrant can't be served unless they determine there's probable cause, but that's for the magistrate to do, as Justice Scalia--

Mr. Dreeben: --I... what I... I'm making a separate point here, which is that officers have a continuing obligation to act reasonably in the execution of a warrant, and of course, they fulfill that in a variety of ways.

They have to be reasonable in identifying the property that's... that's specified in the warrant and that they go to search.

They have to be reasonable in conducting the search of places within that property to see that they're looking for the things that are specified in the warrant and not going on a fishing expedition for things that are not.

They have to be reasonable in deciding whether they decide to dispense with knock and announce, and they also have to be reasonable in deciding that the basis for probable cause that they used to support the issuance of the warrant has not become so stale that a reasonable officer would know that that warrant should not be executed.

Justice Stevens: Well, does that mean that the executing officer must be the same officer who got the warrant?

Mr. Dreeben: No, it certainly doesn't, Justice Stevens.

Justice Stevens: I don't know why he's going to give a warrant to his... some just call in a police officer and say I want you to execute this warrant.

He doesn't know anything about the probable cause.

He just says he's mandated to carry out the warrant.

Mr. Dreeben: Well, I... I think in the ordinary instance, it would be reasonable for the team of executing officers to be responsible for the inquiry that I'm talking about and any individual officer--

Justice Kennedy: --Well, there's no... there's no authority for that.

I... I thought warrants were issued to police officers all the time without knowing the... the precise reason.

It's to search the house to try to find X, and the warrant speaks for itself.

A judge has made that determination.

Mr. Dreeben: --Well, the warrant is obtained based on an affidavit by--

Justice Kennedy: I mean, if you want us to write the opinion with this qualification in it, it seems to me that you're making a big change in the way search warrants are used.

Mr. Dreeben: --Oh, I don't think it's a big change at all, Justice Kennedy, and I... I think what I'm trying to make clear here is that there's an ongoing obligation of reasonableness.

Certainly the Court does not have to get into that in this case to decide it--

Justice Souter: --But... but, Mr. Dreeben, there's an ongoing obligation of reasonableness in the manner of which the... in... in the manner in which the search is carried out.

But unless every officer who... who acts under the authority of the warrant is aware of the probable cause evidence and can make a judgment when that evidence either is stale or, in this case, has not yet ripened, then in fact there is no way for an officer to make that kind of what you're calling the reasonableness judgment in the execution of the warrant.

He simply doesn't have the factual background for it, and that's where the timing... we'll call it... the timing clause comes in because at least an officer who may not know the probable cause behind it all... at least an officer who has a warrant that says, you may search between times X and Y, or a warrant that says, upon the occurrence of event X and time Y, has a... a rough and sound idea of when he can act.

But if that's not in the warrant, the officer cannot make that judgment.

He doesn't know the probable cause necessarily and he doesn't know the time.

Justice Ginsburg: The affidavit... wasn't the affidavit available to the executing officer?

Mr. Dreeben: --Well, in this case, Justice Ginsburg, the... the affidavit was on the scene.

The affiant who secured the warrant was the lead agent who was in charge of the search that was carried out.

The search team had been briefed on the probable cause and the... the contents of the affidavit and the... the items that were to be searched for and when the search was to take place.

All of those things were true.

The district court also found that the affidavit, which does contain the triggering condition in two different places, was incorporated into the warrant.

The search warrant itself refers to the attached affidavit.

So the documents--

Justice Souter: It... it was... I take it it was, in fact, not attached but it was somewhere on the premises.

Mr. Dreeben: --It was not... it was not physically attached.

It was in the possession--

Justice Souter: So an officer who picked up the warrant would not be able to tell necessarily.

If he said, hey, has somebody got the affidavit, they could have brought it forward and he could have found out.

But if... if somebody didn't know where the affidavit was, he wouldn't have any way of knowing.

Mr. Dreeben: --Well, in the abstract, I suppose that that's right, but in... in the concrete circumstances of this case... and I think it's consistent with what I was trying to explain is reasonable search warrant execution... all of the search team was fully familiar with the process that was going on.

This... this was a controlled delivery in which postal inspectors were arranging themselves to make a delivery to the premises of the videotape in question.

Everyone on the search warrant team knew that until that item had been received and taken inside the house, there would be no warrant execution.

And in fact--

Chief Justice Roberts: Well, but the facts of the triggering event are not always going to be so clean, and in many cases they're going to require an exercise of judgment by the officer.

I mean, if the triggering event is a, you know, delivery of a bale of marijuana or something and they see a big box coming in, they're going to have say, well, is that what they're talking about or is... you know, is that it.

And the point is under the Fourth Amendment that those types of judgments are supposed to be made by the magistrate and not by the officers on the scene.

Mr. Dreeben: --Well, I don't think that is the point of the Fourth Amendment.

I think what the point of the Fourth Amendment is is that the magistrate judge makes a determination whether the facts that are submitted to him rise to the level of probable cause.

And then the magistrate writes a warrant that's consistent with what the Fourth Amendment says in terms the Warrant Clause requires.

Then the police officers have to be reasonable in executing it.

That was really my only point at the outset of the colloquy that I had with Justice Kennedy and with Justice Souter.

And the classic example that I think shows that certainly officers may use discretion in what they do in determining whether it's certain types of triggering conditions are met are wiretaps because wiretaps are issued on the basis that there is probable cause to believe that criminal conversations will occur in the future.

The officers then have the responsibility to conduct appropriate electronic surveillance that acquires the criminal conversations but not other conversations that are not within the scope of the probable cause that they've obtained.

Justice Souter: Yes, but doesn't that simply... isn't the analogy there that when a... when a search warrant says you may... you may pick up implements of drug traffic, all it covers is drug traffic.

It doesn't cover coffee, tea, and... and milk.

In... in the case of the electronic surveillance, they're supposed to record criminal conversations and... but not others.

Mr. Dreeben: Well, the point, Justice Souter, is that they have to make a judgment that criminal conversations are what is going to be intercepted.

Justice Souter: But those... those are judgments about facts that they are finding.

They are not judgments about probable cause or the moment at which the warrant becomes valid.

Mr. Dreeben: Well, they're... they're not judgments here about probable cause either because the magistrate has--

Justice Souter: Well, it is.

The... the moment... the triggering event is the event that determines that the probable cause determination is, in fact, true now.

Mr. Dreeben: --Well, that's a separate question, and I think the magistrate's question is, is there probable cause?

He doesn't have to determine that the probable cause is true.

Justice Souter: And his judgment, though, is there will be probable cause when the triggering event occurs.

Mr. Dreeben: That's right.

Justice Souter: And so the triggering--

Mr. Dreeben: No.

I actually, Justice Souter--

Justice Souter: --the triggering event has a probable cause implication, which the selection of objects to be seized does not have.

Mr. Dreeben: --I... I have to say that I disagree fundamentally with the suggestion that he's saying there will be probable cause when the triggering event occurs.

He's saying, based on the facts that are submitted to me now, the probabilities are such that evidence of this crime will be on the property when the warrant is executed.

Justice Souter: Well, he's saying two things.

There is probable cause to believe that what we're calling the triggering event will occur, and there is probable... and when that triggering event occurs, there will be probable cause to believe that evidence of a crime may be found and seized at such and such a place.

There are two determinations.

Mr. Dreeben: Well, I... I don't think that there's any reason linguistically to prefer your formulation, Justice Souter, to the formulation that says there's probable cause to believe now that when the warrant is executed, in accordance with the triggering condition's occurrence, the property will be found.

Justice Kennedy: Of course, that's not what the... what the warrant says.

The warrant says I'm satisfied that the person or the property so described is now concealed on the premises.

Mr. Dreeben: Well, Justice Kennedy, I think the warrant should be read as a whole and not, as this Court has indicated in many cases, a technical sense.

This search warrant, which is at page 47a of the petition appendix, specifically refers to the attached affidavit.

And the district court found as a fact that the warrant was intended to incorporate the affidavit.

The affidavit states quite explicitly in two different places that it would not be executed until the triggering event occurred, and it also makes clear that the triggering event was the delivery of the videotape that respondent--

Justice Stevens: The affidavit itself says there is now concealed a certain person or property.

He checked the wrong the box--

Mr. Dreeben: --Well, I think the... that is correct, too, because this--

Justice Stevens: --If you read the whole affidavit, you know it doesn't mean what it says there.

Mr. Dreeben: --I think that not only do you know that the... this was clearly intended to be an anticipatory warrant as to the videotape, but it also authorized the search for other items that were related to--

Justice Stevens: May I ask you this question?

With a warrant to conduct a wiretap, does the warrant just merely specify the telephone number and the time at which the... the officer may listen, or does it have anything to do with what... what... the content of the... of the conversation?

Mr. Dreeben: --Wiretaps, Justice Stevens, are regulated extensively by Federal statute, and under Federal statute, a wiretap order contains a myriad of details that are not specified by the Fourth Amendment.

Among those details are the crimes that are being investigated and the time period of--

Justice Stevens: No, but I mean in describing the authority of the investigating officer to execute the warrant, does it describe it just in terms of a physical number that can be listened, or one or more numbers, plus a time period, or does... does it say you may listen only when he's talking about foreign affairs or--

Mr. Dreeben: --It specifies the crimes that are being investigated and it contains a minimization requirement which--

Justice Stevens: --It's a minimization as to what they will transcribe, isn't it?

Mr. Dreeben: --It's a minimization as to what conversations they will intercept if they listen to a conversation and determine that it falls outside the scope of what they're authorized to intercept.

Many of the calls that... that are intercepted in these kinds of wiretaps require a considerable amount of judgment and discretion.

Are the individuals talking in code?

Are they talking about crimes in an oblique way that pertain to the subject of the warrant, or are they really having innocent conversations?

And the officers can listen in long enough to make that determination.

If they determine that it's a clean call, they have to minimize and terminate their interceptions.

Justice Scalia: Mr. Dreeben, could... could I ask you if the Government would... would defend a... an anticipatory warrant in these circumstances?

The postal inspectors know that the unlawful video has been put in the mail and they know that it... it is going to one of 17 individuals.

They're not sure which one of the 17.

So they go and get a warrant that says, you know... and... and it will be obvious in my hypothesis that the delivery of the video has occurred.

So can they get a warrant that says you can go in... it lists all of these 17 people.

And it says you can go into their premises as soon as you see delivery of the video.

Would... would you support that kind of an anticipatory warrant?

Mr. Dreeben: Justice Scalia, I... I would certainly with respect to search of common areas.

For example, this was a delivery to some sort of a--

Justice Scalia: Well, then... then... well, I'm sorry to hear you say that because then you are really not saying that there has to be probable cause.

Mr. Dreeben: --No.

I'm saying that there would be--

Justice Scalia: Because at the outset there's no probable cause to believe that any one of those 17... unless you think one seventeenth is enough for probable cause.

Mr. Dreeben: --Well, I think one seventeenth is pushing it for probable cause--

Justice Scalia: Yes.

Mr. Dreeben: --which is why my answer was as to the common area.

Certainly they can get a warrant that says we know that there's an item that represents evidence of a crime and that it's going to be at a particular location upon delivery and we can go in and search that location.

Justice Scalia: Yes, but I'm not talking about a particular location.

I'm talking about we know it's going to be one of 17... or make it 50, if you like.

We don't know which of those.

Mr. Dreeben: Yes.

Justice Scalia: We want a warrant that will let us go in immediately when we see it delivered.

Would you support that warrant?

Mr. Dreeben: With... if what you're talking about is invading the individual expectations of privacy of... of 50--

Justice Scalia: Yes.

It's in somebody's home.

It's into a home.

Mr. Dreeben: --No, I... I wouldn't because I don't think that... that one fiftieth in those circumstances would... would be probable cause without more.

I... I do think--

Chief Justice Roberts: No, but there's no... there's no probable cause until the triggering event.

When... when the triggering event takes place, you've eliminated the 16 others and you do know that it's... it's... there's probable cause.

How is that different from this case?

Mr. Dreeben: --This case is different because there... you... you can subtract out all of the variables except will the postal officials, in fact, deliver it to the place where they're saying they will deliver it and they say that they're delivering it to a household that has actually placed the order.

Chief Justice Roberts: Well, that's not true.

Maybe the... maybe the person decides he won't accept it.

Mr. Dreeben: Then the... then the warrant should not be executed because this affidavit said that--

Chief Justice Roberts: So there are a lot more things than just the delivery.

It's not entirely controlled by you.

Mr. Dreeben: --I think that that... it's fair to say that it's not 100 percent controlled by the Postal Service, but I wouldn't say that there are a lot of things that are left up in the air or that there's any more that's left up in the air than in the kind of experience that goes on in installing a wiretap.

Justice--

Justice Ginsburg: Well, what... what... take this variable.

The... the warrant can be executed when the item is taken into the house, if I remember what it said.

Suppose the defendant is sitting on a porch, sees the postal carrier, gets up, takes the package, and proceeds to walk down the street, and never enters the house.

Could the warrant be executed?

Mr. Dreeben: --Not under this warrant because it was secured by an affidavit that represented that it... the warrant will not be executed unless and until the item is taken inside the house.

And so the agents assumed the risk, so to speak, that the event that you described, Justice Ginsburg, would occur, and under those circumstances, the search wouldn't take place.

Presumably under those circumstances an arrest would take place.

A search would take place incident to the arrest of the individual.

The videotape would be found, and the Government would have acquired the evidence that it's looking for, which is evidence with jury appeal that this individual has, in fact, received child pornography through the mail.

And it's important to recognize that in this case there was ample probable cause that respondent had attempted to receive child pornography through the mail before the triggering event even took place, and had the agents wished to, they could have procured a warrant, a conventional warrant, so to speak, at that time that allowed the--

Justice Scalia: Yes, but you don't want us to decide the case on that ground.

I mean--

Mr. Dreeben: --Well, I don't think this was such a warrant, Justice Scalia.

I'm... I'm just pointing out that there was a chain of events that supported probable cause to a very strong degree and the triggering event represented that until the actual delivery had taken place and the item was brought in the house, the search wouldn't take place.

Chief Justice Roberts: Could you elaborate just a little bit for me on why you think this case is different from Justice Scalia's hypothetical with the 17 people?

Because my concern is there... here you say once the triggering event takes place, then you do... the probable cause comes to fruition or whatever.

How is that different than his hypothetical?

Mr. Dreeben: It's... it's fundamentally different.

This case is fundamentally different from that hypothetical because the measure of probable cause at the time the warrant is issued is very weak under Justice Scalia's hypothetical.

One out of 17 is pushing the envelope.

One out of 50, at least absent some extraordinary national emergency, is probably well outside the envelope for saying we have probable cause to go into any particular place.

Justice Scalia's hypothetical illustrates that the emergence of later facts can make it very clear that the agents can go in and get probable cause at that moment, but this case is fundamentally different because the agents have probable cause based on probabilities.

Justice Scalia: --It is probable that this package will be delivered to this individual.

That probability exists at the time that the warrant is... is issued.

Mr. Dreeben: That's right.

Justice Scalia: And that's the probable cause you're relying on.

Mr. Dreeben: That's right.

Justice Scalia: It is probable that this package will be delivered to this individual.

Mr. Dreeben: That's right.

And those fact--

Justice Stevens: But that probability does not support the truth of the statement that the person or property so described is now concealed at the place for the issuance of the warrant.

Mr. Dreeben: --Well, I... I think this takes me back to the fact that this warrant, number one, should be construed as a whole and not... not by virtue of which box was checked and, number two, that there were many items that were specified in the warrant that... and the warrant application that the agent had reason to believe were then concealed at the time.

So this was really a case where the form warrant was inadequate to the... to describe fully and accurately what was going on.

Justice Stevens: Of course, if the... if the stuff was already there that supports the warrant and the search, we don't even reach the question of a... of the anticipatory warrant.

Mr. Dreeben: Well, I think you do in--

Justice Stevens: I should say I... I've approached the case on the assumption that the only thing we're worried about is whether... whether the anticipatory part is okay.

Mr. Dreeben: --And that is--

Justice Stevens: But it doesn't seem to me to be a fair response to say, well, we had other grounds for--

Mr. Dreeben: --No.

It's a... it's a fair response into... on how the warrant was drawn and why the statements that were made are not laughably wrong.

They... they are partially inaccurate because the videotape was clearly not on the premises at the time.

They are partially right in that other evidence of child pornography distribution was.

But this case... and, Justice Stevens, I quite agree with you.

This case only concerns the triggering condition because that--

Justice Stevens: --But... but you would defend the warrant even if the only thing they were looking for was the stuff delivered at the... at the time.

Mr. Dreeben: --Yes, and that's the only thing that's before the Court.

Justice Stevens: And as to that aspect of it, the warrant is incorrect.

Mr. Dreeben: Yes.

Justice Stevens: The warrant itself.

Mr. Dreeben: The... the box on the warrant is.

Again, I think that you need to--

Justice Stevens: Well, it's not really a box.

I am satisfied, et cetera, the property so described is now concealed on the premises.

Mr. Dreeben: --The same response that I gave to Justice Kennedy.

The magistrate found that the warrant, the form of... that constitutes the warrant, incorporated the attached affidavit, and the attached affidavit makes clear exactly what the agent had in mind.

There is an alternative point here that I want to make before I reserve the remainder of my time for rebuttal, and that is the Ninth Circuit's position, even if the Ninth Circuit were correct that the triggering condition needs to be in the warrant, should still not lead to the suppression of evidence because although the Government's submission is that the triggering condition is not required by the Particularity Clause, if some other doctrine under the Fourth Amendment did require it to be in the warrant, the warrant should be treated as one that is at most overbroad as to the time of permissible execution.

That is, on its face it would authorize the warrant to be executed from the moment of issuance until 10 days after issuance instead of from the moment that the triggering condition is satisfied until 10 days after issuance.

When courts have confronted overbroad warrants, what they have done is ask is there probable cause that supports part of this warrant.

If the answer to that is yes, the next question is, is the evidence that's sought to be suppressed acquired under the part of the warrant that was validly supported by probable cause?

If the answer to that is yes, there's no suppression.

The warrant is, in effect, severed and the only suppression that can be obtained is as to evidence that was secured by execution of the part of the warrant that's not supported by probable cause.

Here, there was ample probable cause to support the magistrate judge's conclusion that after the triggering condition was satisfied, the videotape would be on the premises.

The warrant was not executed until after the delivery of the videotape took place, and therefore, there was no deficiency in the correlation between probable cause showings that were made to obtain the warrant and the time at which it was executed.

And the result is that there should be no suppression of evidence.

If I may save the rest of my time for rebuttal.

Argument of Mark J. Reichel

Chief Justice Roberts: Thank you, Mr. Dreeben.

Mr. Reichel.

Mr. Reichel: Mr. Chief Justice, and may... may it please the Court--

I'd like to begin with noting that, Mr. Chief Justice, you highlighted a specific concern with anticipatory warrants and a specific concern specific to this type of case.

A discussion was... was had about triggering events are commonly not so clean.

It requires a lot of judgment to be made by the officer in the field.

There are not only examples in the case law, but I speak from my own experience as a public defender of many years that there are many examples that occur often in the courtroom.

Specifically a triggering condition may allow for the search of a home after a suspect sells narcotics to an officer, but what will happen is the suspect will take the money from the officer and then have to go to another residence to get the narcotics, not the residence that the magistrate and the officer believe he would get them from.

As a result, he has to make a determination at that point whether the triggering condition has been satisfied.

Justice Scalia: Mr. Reichel, it... it seems to me it's part of your case that the probable cause must be in existence at the moment the warrant is issued and that the magistrate cannot take into account the passage of time.

Are you--

Suppose that... that policemen apply for a... a warrant in Manhattan which is to be served in Brooklyn, and it's going to... it's going to take half an hour to get there.

Everybody knows it's going to take half an hour.

And the probable cause that they come up with is they know that this mob leader is going to be in this apartment between 6:30 and 6:45.

Okay?

And they present the warrant to the magistrate at... at 6 o'clock.

It will take half an hour to get to Brooklyn.

The magistrate knows that when it's served, the mob leader will be in this apartment.

Can that... can that warrant issue?

Mr. Reichel: Yes, because the magistrate has determined that there's probable cause to believe that at the time of the search, the contraband, the purpose of the search, will be present in that particularly described location.

Justice Scalia: Right, and... and likewise, it... it would work the other way.

If the magistrate had the same facts, the... the mob leader is going to be there between 6:30 and 6:45, and the warrant is presented to him at 6:30, he would have to decline it because he knows by the time it's served, it's... it's going to be gone.

Right?

Mr. Reichel: That is correct.

Justice Scalia: So the magistrate is always looking to the condition when... when the warrant is executed, and that's all that's happening here.

There is probable cause to believe that this person will be receiving contraband.

There is probable cause to believe it because he sent for it and it was mailed to him.

It's just a matter of waiting till it gets there.

There is probable cause to believe that he will receive it.

And all you're doing is predicting in the future, saying the probable cause doesn't exist now, but it exists when the warrant will be executed.

I don't see... I don't see any real difference between that and the... and the mob leader example I just--

Mr. Reichel: Justice Scalia, what the magistrate is predicting is that there will be receipt, but the magistrate is... is not predicting that there will be contraband inside of that house at that point.

He's actually shipping that discretion to the officer in the field.

Justice Scalia: --No, but it's probable.

At the time that he issues the warrant, it is probable that this person will be receiving contraband because they showed, you know, this guy sent for it.

He sent for the... these child pornography films in... in a... you know, a Postal Service rouse, and we mailed it to him.

It's probable that he's going to be receiving it.

Mr. Reichel: It is probable that he's going to be receiving it.

However, what occurred... what... the... the problem that occurs in such a situation is that is that the warrant issuing process itself, which is part of the machinery of government... the actual process of issuance is completed with anticipatory warrants by the officer in the field.

It's not fair to say that the warrant has been issued and the magistrate provides it to the officer.

At that point, it's not a valid warrant.

A warrant cannot be issued if it's not valid by definition.

So what you have--

Justice Ginsburg: Mr. Reichel, one of the concerns about the position you're taking, the alternative would be that the police officer, expecting that this package is going to be delivered at a certain time, is on the lookout for it.

He sees the post officer approaching, calls on his cell phone to get an emergency warrant, let's say.

The magistrate will not be nearly as well informed as he was when he was presented with... was it a 64-paragraph affidavit?

So the magistrate knows that the whole deal... he can't possibly know it if he's got... got a telephone call on an urgent basis.

So if you want the magistrate's judgment rather than the police officers' on the spot, then it makes much more sense to have the magistrate get a detailed picture of what's going on and decide whether or not he'll issue the warrant.

Mr. Reichel: --That is correct, and I'm... and, Justice Ginsburg, that's why telephonic warrants are simple and easy, one of the many alternatives to anticipatory warrants, which do not require any--

Justice Ginsburg: But I just... I made the opposite argument, that a telephone warrant has to be done on the basis of minimum information.

The officer... the magistrate will have a detailed affidavit when it isn't on an emergency basis.

He... he will have, as he did in this case, an affidavit with 64 paragraphs explaining the whole deal, how it was set up.

So isn't... isn't there greater security if you could have a magistrate with time to think, well, is there really probable cause than to have the magistrate make that judgment on a... such a quick basis?

Mr. Reichel: --Yes, there is, Justice Ginsburg.

And the procedure... the most appropriate procedure is the duplicate warrant whereby the magistrate, satisfying all the concerns Your Honor has expressed, has this warrant.

As to the final matter, the final determination of probable cause, he receives a call from the officer.

There's an agent with the magistrate at the time.

He advises what's just occurred.

He can advise he took the package but did not go in the house.

He took the package and did go in the house.

The magistrate has the 64-page affidavit, is all prepared now.

He can advise the officer to sign off on it, that it's okay to search now.

He signed that--

Justice Ginsburg: So there has to be... when does he get the... when does the magistrate get the affidavit?

Mr. Reichel: --Well before the delivery of the package in such a circumstance, Your Honor.

They bring a duplicate... a duplicate warrant to the magistrate who... and they... and there's an agent who stays with the magistrate.

They then control... are in complete control at this point of the contraband.

Justice O'Connor: Mr. Reichel, did you take the position in the proceedings below that anticipatory warrants are invalid?

Mr. Reichel: No, Your Honor.

Justice O'Connor: No.

And did you raise the issue in your response to the petition for certiorari?

Mr. Reichel: No, Your Honor.

Justice O'Connor: No.

But you want us to address it now.

I mean, you... you make a big deal of the notion that there's no such thing as an anticipatory warrant.

And yet, it's never been addressed below.

It wasn't addressed by the court below.

Mr. Reichel: Your Honor, if I... Justice O'Connor, if I can elaborate.

It was raised in the district court, and in fact, I believe it's in the joint appendix.

Excuse me.

It's in the cert petition at page 36a, which I think is appendix D, where the district court finds that they're permissible, and he cites Weber and Hale.

And the district judge at that point made a final determination for the litigation in the district court that they were permissible and they were lawful in all circumstances.

I did not... the matter on appeal to the Ninth... the court of appeals on appeal, the more surer course that we thought for reversal would be the failure of particularity of these types of requirements.

But the most important point is I do believe it's fairly included in the question presented before this Court.

Several examples, long discussion, lots of confusion about what must... what procedure must take place with anticipatory warrants I think calls out for the inferior courts to hear from this Court what those requirements are.

To answer what those requirements are, this Court must answer whether they're constitutional--

Justice Scalia: Can I--

Justice Breyer: I don't see--

Justice Scalia: --can I take you through my... a variation of my earlier hypothetical?

You say that the magistrate can issue the warrant at 6 o'clock, although he knows that there really won't be the probable cause until 6:30.

You say that would be valid.

He could issue it in Manhattan knowing that it wouldn't be served in... in Brooklyn until 6:30.

What if the magistrate specified that out of an abundance of caution?

It's just the same case, but he writes on the warrant, this warrant is not to be served until 6:30.

Does that make it invalid?

Whereas, it was valid before, it's not valid if he... if he says I am anticipating what will be the situation when the warrant is executed.

He says it explicitly, it can't be served until 6:30.

Does that make it bad?

Mr. Reichel: --Textually he... textually under the language of the Fourth Amendment, he cannot issue the warrant for service at 6:30 when probable cause--

Justice Scalia: Doesn't it strike you as... as strange that it's perfectly okay if he issues it at 6 o'clock, knowing that it'll be... won't... that there isn't probable cause now, but there will be at 6:30 when it will be served.

You say that's perfectly okay.

But if he says it on a warrant, not to be served until 6:30, it suddenly becomes bad.

Mr. Reichel: --If it... if it is textually okay, if the warrant is valid under the Fourth Amendment, that it must be clearly stated that the time and the... and the significant limit on the officer's power to search is the time of 6:30, that must be clearly stated on the warrant to satisfy the Particularity Clause of the Fourth Amendment.

Justice Scalia: Oh, I see.

So... so you say so long as you say something as clear as 6:30, that's okay.

It cannot be served until 6:30.

Mr. Reichel: It must be on there.

It is a requirement under the Particularity Clause that it must be on there for the officer--

Justice Ginsburg: Where... where is time?

I know that the Fourth Amendment says persons and places.

Where does it say time is one of the particulars?

Mr. Reichel: --It is inherent.

It is inherent in that language.

It is backed up... clearly it is backed up by the purposes behind the Particularity Clause.

If a warrant... the probable cause... the... the two clauses in the Warrant Clause, the probable cause, is constitutionally I believe joined at the hip.

It is textually joined with the objects of the search, the place to be searched, and the... and the persons to be searched.

And as a result--

Justice Ginsburg: I think time... time is certainly relevant to probable cause, but the... the Fourth Amendment says what you have to identify with particularity are places and the items and the person.

Person, things, and place.

It doesn't say time, but you say that's inherent.

Have we... are there decisions of this Court that say time goes to the particularity requirement?

Justice O'Connor: Let me give you another example.

There are search warrants for wiretaps, are there not?

Mr. Reichel: --Yes.

Justice O'Connor: And they are often anticipatory.

They aren't issued because the suspect is now using the phone, but because it's anticipated in the future the suspect will use the phone at some point and there's probable cause to believe, if... if the suspect does, there may be evidence of a crime.

I mean, anticipatory warrants are just inherent in the system.

I don't... I just don't think your argument follows from precedent.

Mr. Reichel: Thank you, Your Honor.

Justice O'Connor, I do know that the... that wiretap statutes came about only after three important decisions from this Court, Ker v. California, Katz, and Berger.

And in... in those opinions, they dealt... they dealt very strongly with the Particularity Clause of the Fourth Amendment and wiretap restrictions.

Thereafter, there were extensive congressional hearings on wiretaps and the final result was a very carefully drafted statute that allowed for wiretap, subject to... to very stringent conditions, specifically enumerated... enumerated crimes and specific circumstances, but additionally, notice to the homeowner--

Justice O'Connor: Well, the Constitution still applies to it, and they are inherently anticipatory.

Mr. Reichel: --And I... and I believe that wiretap laws... the wiretap laws require a showing of present probable cause, not probable cause in the future.

But there is criminality ongoing at this time.

Justice O'Connor: Probable cause that there... this is somebody who's going to use a certain telephone number and that there may be reason to suspect a crime will be discussed.

Mr. Reichel: I believe this Court announced in--

Justice O'Connor: And... and this is no different than that.

Mr. Reichel: --I believe in... in... this Court announced, Justice O'Connor, in the Berger opinion that for a wiretap warrant to be authorized under the Fourth Amendment, there must be a crime undertaken, presently being committed, or about to be committed, additional evidence of a crime that's already been committed.

There is present probable cause.

And it also, I do not believe, vests the discretion in the officers to completely control when probable cause will occur.

Justice Scalia: I mean, the conversation is not occurring right now.

The magistrate has to say in the future, when this warrant is executed, the conversation probably will be occurring.

Right?

And so also here.

You know, the... the receipt is not occurring now, but on the basis of all of the evidence before me, I think that that receipt will be occurring.

Mr. Reichel: Justice Scalia, I believe that wiretaps are different for a few reasons.

First of all, I do not believe they could have been foreseen by the Framers of the Fourth Amendment.

As a result, more pragmatic modern approaches for law enforcement's needs must be taken into consideration.

But additionally--

Justice Stevens: I'm not sure the Framers used controlled deliveries either.

[Laughter]

Mr. Reichel: --I agree, Your Honor.

Justice Breyer: --All right.

I... I have a question that you could just clarify a confusion.

You want to bring into this case the question of whether or not anticipatory warrants are ever valid.

I had a case in the First Circuit where I explained my view on that.

I thought they would be reasonably described.

So I don't know if that issue should be brought up here.

Maybe.

I can't figure out what issue should be brought up here.

There's a Van Treska case that says we ought to read these things in a common sense fashion.

All right?

I read it.

My common sense says I have a warrant here.

It says nothing about anticipatory anything.

It says you can go and search for any of 16 items, 14 of which are in his house well before the delivery.

After all, he's had all this correspondence with these people about child pornography.

They have terrific reason for thinking he might have some.

And that's all it says.

And then it says, is there probable cause for a warrant that says go in any time now and search for any of these items, including what will be delivered, if that's when you do it?

I say I look at the probable cause.

His probable cause is he thinks that another package is being delivered, and he's right to think it.

Now, whether it is delivered or not doesn't add anything really to the issuance of the warrant.

It might add to his personal confidence.

But that's my common sense opinion.

The common sense is the only question here is do they have probable cause to issue a warrant that allows them to search now, because that's what it says.

So now how... how, given that... I grant you the Ninth Circuit went into all kinds of other things, but you explain to me, please, how I'm supposed to reach those other things and what I'm supposed to do, and why I'm wrong.

Mr. Reichel: Thank you, Justice Breyer.

The particularity requirement requires specificity on the purposes behind the particularity requirement in the warrant itself and not in some other documents or supporting documents elsewhere.

Justice Breyer: Oh, no, it's not supported.

It's specific.

It says go to Jeffrey Grubbs' residence and then it has an attachment A which describes it with great specificity.

And go and search for and seize the records and materials described in attachment B, and then we have 16 different kinds of items with great specificity.

That's it.

That's the end of this warrant, and that's what it says to do, and that's what he did.

And then he has a different affidavit which gives him the probable cause for issuing the warrant I just described.

Mr. Reichel: Justice... Justice Breyer, it says that they may enter into that house, but only upon the occurrence of a significant event, a specific occurrence.

Justice Breyer: Where does it say that?

Mr. Reichel: That is in the affidavit--

Justice Breyer: No, no.

I'm reading the warrant.

I'm not reading the affidavit.

It happens to say that the affidavit is... that that affidavit is... it's in appendix A, appendix B, but it doesn't say anything about going in on... where does it say that?

Mr. Reichel: --Well, it--

Justice Breyer: It says... mine says, you may command to search on or before April 27th for 10 days the person/place named and make the search in the daytime between 6:00 and 10:00.

That's what mine says.

Mr. Reichel: --Justice--

Justice Breyer: Then there's an affidavit about probable cause.

That's true.

So--

Mr. Reichel: --Justice Breyer, I think that highlights and it supports the court of appeals decision in this case, specifically because if it's not stated on the face of the warrant, such as--

Justice Breyer: --What's not stated?

Mr. Reichel: --The limit on the officers' power to search.

Justice Breyer: Where is there a limit?

Mr. Reichel: Their limit is in the triggering event.

It is an anticipatory warrant which is written at the top.

Justice Breyer: It is?

Mr. Reichel: Yes.

Justice Breyer: What is it that tells us that?

I just happened to read an affidavit where the... the person says that he won't enter until this package is there, but there are a lot of cause I would think--

Justice Scalia: Doesn't the Government concede this point?

I had thought the Government conceded that this warrant would not have been validly executed if they went in before the triggering event.

Otherwise, there's no purpose in putting in the triggering event.

Maybe we'll have to get the Government to... to state that explicitly, but that... that's my understanding, that they acknowledge this warrant would not have been validly executed if they went in before the triggering event occurred.

If that's not the case, I agree.

I don't know why we took the case.

[Laughter]

Mr. Reichel: That is correct, Justice Scalia.

And, Justice Breyer, the limitation for the officer is a significant matter.

It is the only thing that gives him the--

Justice Breyer: --Well... well, he says in his affidavit he's not going to execute it until this package is delivered, but that... if I read it in a common sense way, say, of course, he isn't going to because he wants to get everything at once.

But after all, he's in the place.

I would say there's a lot of probable cause for him to looking for 12 of these items which are there whether this package is there or not.

Of course, he's not going to execute it till later.

Justice Stevens: But, of course, if you take that view, why did they bother to put the words, anticipatory search warrant, on the document?

That's what we're fighting about.

If we decide it on your ground, we never should have taken cert.--

Justice Breyer: Maybe that's the answer.

Mr. Reichel: --I believe the particularity requirement also does not assume that the officers seeking the warrant will be the officers serving the warrant.

Chief Justice Roberts: What else is there in this joined at the hip particularity requirement?

The number of officers?

Which officers, FBI agents or DEA or something else?

I mean, you're... you're adding to the text of the amendment, and I just wonder what else is added under your view.

Mr. Reichel: Mr. Chief Justice, I believe they are joined at the hip because the... the particularity requirement--

Chief Justice Roberts: No.

That's your argument.

I'm just saying what else is joined at... at the hip besides time.

You say they don't say time.

They say persons to be seized and place to be searched, and you say inherent in that is time.

Well, what else is inherent in there?

Mr. Reichel: --If there's a... Mr. Chief Justice, if there's a significant limit on the time of the execution of the warrant, then that does become part of the Particularity Clause.

Chief Justice Roberts: That's time.

Is there anything else that's not written there that is part of that particularity requirement?

Mr. Reichel: Not that I... if it is significant... if it is a significant limit on the officer's power to search and if it serves the other purposes of the particularity requirement, the measurement of the... providing the homeowner the notice of what is going on.

Chief Justice Roberts: Well, there's all sorts of, as Mr. Dreeben explained, reasonableness.

It doesn't say how you enter the house, but if you suddenly go in with a... with a tank, we might find that unreasonable.

But that's not something that has to be spelled out particularly under the terms of the Fourth Amendment.

Mr. Reichel: Mr. Chief Justice, that's correct.

The reasonableness prong is separate, and I think this Court has... has long pronounced that the manner of executing a warrant may offend the Constitution and vitiate the legality of a search.

Justice Scalia: So who--

Chief Justice Roberts: It doesn't have to be spelled out in the warrant itself.

Mr. Reichel: The manner of entry... the method of entry does not have to be spelled out.

Justice Scalia: --So who, what, and where includes when, but it doesn't include how.

Right?

Where... where do you derive this proposition?

Mr. Reichel: I believe that not for... for all cases, I cannot answer the question, but for cases of anticipatory search warrants where the officers are going to finalize the issuing process, the officers are completely in control of the manufacture and completely in control of the completion of the delivery of the contraband, and if a magistrate has allowed them to make that decision in the field, that has to be clearly stated to satisfy the particularity requirement on the front page of the warrant so that any officer executing it, not just those who... who seek the warrant, but the officer executing it, is keenly aware of his limit to search.

As well, it puts the homeowner on notice of the other factors of the particularity requirement that this has announced in--

Justice Stevens: --May I ask--

Mr. Reichel: --the Groh v. Ramirez opinion.

Justice Stevens: --may I ask you this question?

The warrant now says it is now... the warrant says the contraband and so forth is now concealed on the person or in the house.

And if I understand your position correctly, your first argument is it should have said, will be concealed upon the happening of the anticipatory event.

That would have... and describe the event properly.

That would have satisfied the Ninth Circuit's objection.

Mr. Reichel: That... that is correct, Justice Stevens.

Justice Stevens: Now, why would that not also have satisfied the objection of the warrant... the argument you make in this Court?

Because it would have made it clear that there is now probable cause to believe it will be there at the time of the execution.

Why isn't that sufficient to make the warrant valid?

Mr. Reichel: It will make the warrant valid under the Particularity Clause.

Justice Stevens: Will it also satisfy the text of the Constitution that says no warrant shall issue except upon probable cause?

And I'm asking you why is it not adequate probable cause to say we believe that will probably happen when the anticipatory event occurs?

Mr. Reichel: Because the text of the... of the probable cause requirement in the Fourth Amendment has clearly been announced by this Court to always require the magistrate's determination of the facts, as well as the legal grounds, after studied caution to make that determination.

Justice Stevens: Well, he has made a determination of the facts that will establish probable cause.

Mr. Reichel: He has, Justice Stevens, but he has ceded his discretion to finalize that... to finalize that decision.

Justice Breyer: Will you... will you just help me with this?

Justice Stevens answered my question.

The word anticipatory.

The word anticipatory does suggest it isn't valid for a while.

Nothing else in the warrant does.

What am I supposed to do if I think there's adequate probable cause for issuing that warrant right now in respect to 12 of the things?

And it's really pretty hard for me to try to understand what this warrant is about if I'm supposed to understand it, by reading through about 15 or 20 pages of small print and there discovering somewhere in the back of it some... the post office says I'm not going to execute this until this other package gets there too.

Now, that does make me nervous.

That... that supports you.

Mr. Reichel: That does not--

Justice Breyer: I understand that, but it's not going to support you enough unless you connect this anxiety I'm having now about this being buried in page 28 of an affidavit when it's an important condition of the warrant, the only clue to that fact being the word anticipatory.

And there we are.

Now, you tell me why this anxiety, which is going to help you, is connected to something in the law.

Mr. Reichel: --Justice Breyer, they are prone to abuse by nature.

They are--

Justice Breyer: No, please don't.

I start with an assumption that an anticipatory warrant is constitutionally valid.

I start with that assumption.

I'm assuming that the conditions have to reasonably describe.

My anxiety is resting only on the fact that this warrant doesn't seem to be an anticipatory warrant but for one word, and to know what it's about, you have to look through 28 pages of fine print.

Now, you connect that anxiety to something in the law.

Mr. Reichel: --Thank you, Justice Breyer.

In Groh v. Ramirez, this Court set forth very clearly that the purpose of the particularity requirement serves two functions.

One is for law enforcement; the second is for the homeowner.

And for law enforcement, it is very clear in these... this Court's decisions that that must be so that the officer executing it can simply and quickly and efficiently determine the limits of their power to search.

Justice Scalia: Of course, all... this whole argument begs the question.

It... it assumes that the particularity requirement includes time, not only who, what, where, but also when.

Right?

I mean, you... you acknowledge that if you're wrong about that, if you're wrong about the fact that who, what, and where automatically includes when, the argument you've just made doesn't get anywhere.

Mr. Reichel: Justice Scalia, I... I can... it is inherent in the place, the objects, and the persons to be searched in a particularity--

Justice Scalia: I understand that's your argument, but you agree that if... if that argument is wrong, you're done.

Mr. Reichel: --That's correct.

With regard to anticipatory warrants, time is part of the particularity requirement.

The time of the execution of the warrant, the time of the determination of probable cause that contraband will be present, the time of the determination of probable cause, which is the triggering event, which comes from the Fourth Amendment itself--

Justice Ginsburg: They have first the outer limit of the 10 days in the warrant itself.

And in fact, this warrant was executed within 2 days of its issuance.

Is that not--

Mr. Reichel: --That's correct, Justice Ginsburg.

Justice Ginsburg: --And could it be if the officer knows that this package... let's say it's loaded with dynamite or guns or drugs... is going to be delivered at a certain time and it... the delivery occurs, and then the officer busts in and says, there's exigent circumstances.

They're going to take those drugs and they'll be off the premises.

That might happen.

Mr. Reichel: That might happen.

Exigent circumstances in the execution of a warrant were not presented in this case.

Justice Ginsburg: Well, my... my question is, isn't it better to have the police go to the magistrate when there's time for the magistrate to reflect, than to have this scenario where the police will say this was really dangerous stuff, exigent circumstances?

Wouldn't you want the officer to apply in advance for the warrant?

Mr. Reichel: Justice... Justice Ginsburg, yes, I would.

And I think at that point the officers would also have to leave the final determination as to whether probable cause has been completed to the magistrate through the use of many alternatives, including a telephonic warrant where the--

Justice Ginsburg: Even... wasn't this man... magistrate told we've set this whole thing up?

We've put this package in the mail.

It's going to be delivered at such and such a time.

Wasn't the magistrate told that?

Mr. Reichel: --Yes, Justice Ginsburg.

Justice Ginsburg: So why was there a need for a second call when exactly that happened?

Mr. Reichel: Well, specifically what was highlighted in this case is that the individual receiving the package was his wife, Justice Ginsburg.

And it's... it's clear in the record that she received it.

Moments later, they rushed in.

The first thing she said to the officers is what is going on here and why are you here?

What is going on here?

Why are you here?

At that point, I believe clearly under... under the court of appeals decisions and other court decisions, that this crime, the knowing receipt of the illegal material, had not been completed.

There had been no crime committed at that point.

And there was no... no knowing receipt of the illegality of this.

There's never been any evidence--

Justice Ginsburg: Didn't... was... he was on the premises?

Mr. Reichel: --He was inside the--

Justice Ginsburg: And he said, I know why they're here.

Mr. Reichel: --Justice Ginsburg, he was inside the house, and he walked outside thereafter.

Justice Scalia: Well, and they... and they found other... other videotapes besides the one that had just been delivered, didn't they, in the course of the search?

Mr. Reichel: They did, Justice Scalia.

Now, but they did enter the house prior... they entered the house prior to a lawful triggering condition.

In such an example, they could have contacted the magistrate immediately, advised what had happened, who would have realized at that point that a crime had not been committed, that there was not probable cause that this crime, the knowing receipt, had been committed.

Justice Souter: And exactly the same thing would be true if they had stated the triggering event clearly somewhere in... in the warrant.

The... the argument here is that the triggering event was stated in the affidavit.

Mr. Reichel: But this does... Justice Souter, this highlights why the triggering event must be clearly, specifically drawn by a magistrate with studied caution about the exact factors for probable cause which would allow this search.

And if it's buried in some affidavit somewhere, if it's not on the front of the warrant, or if it's vested in the discretion of the officer to make that determination whether that's close enough, then it is prone to these abuses and it is... requires the magistrate to make that final legal determination.

Chief Justice Roberts: Thank you, counsel.

Mr. Reichel: Thank you.

Rebuttal of Michael R. Dreeben

Chief Justice Roberts: Mr. Dreeben, you have 3 minutes remaining.

Justice Scalia: Mr. Dreeben, a quick yes or no.

Does the Government concede that when you have an anticipatory warrant, the warrant is not properly executed until the... the anticipated event occurs?

Mr. Dreeben: Yes, Justice Scalia, because the representations that are made to the magistrate to secure the warrant include the fact that the warrant will not be executed and the agents should--

Justice Stevens: But that... that puzzles me a little.

The... the affidavit says execution will not take place until the event.

But the authority to search, which is in the last paragraph, is not limited to the time after the anticipatory event.

Mr. Dreeben: --That's true because I think that the magistrate is making the common sense judgment that this will be... we don't know exactly when--

Justice Stevens: I mean, not even... it is not only the warrant, but the affidavit itself doesn't say we merely request permission to search after the... after the event.

It's a general request for authority to search.

Mr. Dreeben: --It makes the representation, and I think what draws the link between the conditions that are represented to occur before the warrant will be executed and the warrant itself are paragraphs 1, 2, and 3 of the items that are to be seized because those pertain--

Justice Stevens: No.

I'm drawing your attention to paragraphs 61 and 64 of the affidavit.

Mr. Dreeben: --I understand that, Justice Stevens.

But the... the items to be seized include the videotape and its containers which are paragraphs 1, 2, and 3.

Justice Stevens: Yes, but the authority is broader than the authority to search for those items.

Mr. Dreeben: That's true.

But those items... the magistrate can conclude that there's probable cause to believe that they'll be on the premises only after delivery has taken place.

And the magistrate has issued the warrant, and the three principal items at the top are those things.

So it's logical to conclude that the magistrate formed the view that there's probable cause to believe that these items will be on the--

Justice Stevens: But it takes a step of reasoning beyond merely saying we incorporate the... the affidavit into the warrant.

Mr. Dreeben: --I think it takes a very small step of logical inference, but I agree with you, Justice Stevens, that it doesn't say everything that is logically implied in the magistrate's probable cause finding.

But the magistrate's probable cause finding is predicated on the view that the items will be there because the Postal Service has represented they'll deliver them.

The burden of the Ninth Circuit's view is that the Particularity Clause applies to the triggering condition and mandates that it be stated in the text even though the Fourth Amendment's text doesn't contain that requirement.

This Court in Dalia v. United States rejected a similar effort to add a requirement to a warrant that would authorize surreptitious entry to install a covert bugging device, and the Court's reasoning in Dalia makes clear that the Court was unwilling to go on a progressive path of reading things into the Fourth Amendment's Particularity Clause that are not there.

Justice Breyer: So you just want us to say, look, the Ninth Circuit is wrong.

They're okay to have conditional warrants like this and there is no absolute rule you always have to have the triggering condition in.

As to whether this is too confusing or not too confusing, send them back and let them figure it out.

Mr. Dreeben: No, I don't want the Court to send it back to the Ninth Circuit to impose yet new requirements on the execution of warrants.

[Laughter]

What I want the Court to hold is that the triggering condition in an anticipatory warrant is not subsumed in the Particularity Clause and therefore it need not be in the face of the warrant at all.

And alternatively, if the Court believed that it did, that a warrant that's executed after the triggering condition has occurred, does not require suppression of evidence.

Thank you.

Chief Justice Roberts: Thank you, Mr. Dreeben.

The case is submitted.

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Hudson v. Michigan - Oral Reargument

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Hudson v. Michigan

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04-1360_20060518-reargument.mp3

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

1 BOOKER T. HUDSON, JR., Petitioner v. MICHIGAN.

No. 04-1360

May 18, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 a.m.

APPEARANCES: DAVID A. MORAN, ESQ., Detroit, Michigan; on behalf of the Petitioner.

TIMOTHY A. BAUGHMAN, ESQ., Detroit, Michigan; on behalf of the Respondent.

DAVID B. SALMONS, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondent.

PROCEEDINGS

(10:00 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument now in Hudson v. Michigan.

Mr. Moran.

ORAL ARGUMENT OF DAVID A. MORAN

ON BEHALF OF THE PETITIONER

MR. MORAN: Mr. Chief Justice, and may it please the Court:

For centuries the knock and announce rule has been a core part of the right of the people to be secure in their houses from unreasonable searches and seizures. It reflects the notion that when the government has the right to enter a house, whether to perform an arrest, to search for evidence, or to seize goods, that the people should have the right to answer the door in a dignified manner, except in an emergency, and to avoid the unnecessarily gratuitous embarrassment and shock that often follows a precipitous police entry.

CHIEF JUSTICE ROBERTS: So wouldn't it be more accurate to say that it's protected the right to be free from unreasonable entry as opposed to unreasonable search and seizure?

MR. MORAN: Well, this Court has recognized in Wilson, consistent with the common law authorities, Mr. Chief Justice, that they are connected, that the entry directly affects the reasonableness of the search and seizure that occurs within. And that's why this Court in Miller and in Sabbath suppressed the evidence following knock and announce violations. But in Wilson, this Court directly stated that the common law, the Fourth Amendment, -- the common law that informs the Fourth Amendment, directly demonstrates that the Framers thought that the method of entry directly affects whether a search or seizure inside a home is reasonable.

JUSTICE KENNEDY: So -- so in your view, there has to be a 4- to 6-hour search for complex financial records, business documents. There's a warrant. The search is otherwise proper. They forget to knock. They say, oh, you know, we are police officers. There's a discussion for a while. But -- anything seized after that is -- must be suppressed.

MR. MORAN: If there is --

JUSTICE KENNEDY: It just seems to me in the hypothetical I put -- and there's obviously a reason I put it -- is there's just no causal link between the -- the suppression and -- and the failure to knock.

MR. MORAN: Your Honor, the evidence inside -- the evidence is seized inside. The seizure of the evidence inside is directly related to the manner of entry, just as there's a direct causal link between when the officers come in without a warrant when they should have gotten a warrant first. They thought there was an exigent --

JUSTICE KENNEDY: Well, but you say directly related. That -- that assumes the very point that I have in mind. I don't know why it's directly related.

MR. MORAN: Well, going back to Wilson, this Court said in Wilson, if I might quote from Wilson, that the -- the common law search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce their presence and authority prior to entering.

JUSTICE KENNEDY: It depends -- it depends in part.

MR. MORAN: It depends in part, certainly. There are other factors as well, but the reasonableness of the search depends in part.

The issue --

JUSTICE SCALIA: Counsel, what -- what do you do with our opinion in -- in 1986 in Segura v. United States, which seems to me to contradict your assertion that you cannot separate, for purposes of the exclusionary rule, the manner of entry from the search? In that case, the -- the policemen entered without a search warrant. So the entry was clearly a violation. They left two officers in the room and other officers went back and got a search warrant. When they returned with the search warrant, the two officers who were in the room proceeded to do a search, and we admitted the evidence. It seems to me that in that case, we -- we did succeed in -- in separating the -- the entry from the subsequent search, and I don't know why -- why we can't do the same thing here.

MR. MORAN: Because there were exceptional circumstances, Justice Scalia, in Segura.

JUSTICE SCALIA: What -- what were the exceptional circumstances?

MR. MORAN: A 19-hour delay and a warrant that was obtained that had nothing to do with the initial entry. That was in no way dependent on the initial entry.

JUSTICE SCALIA: We're still, it would seem to me -- I don't know -- the warrant wasn't dependent on the initial entry? You could also say the initial entry wasn't the product of the -- of the later warrant.

MR. MORAN: The initial entry was not the product of the later warrant, but once this Court ruled --

JUSTICE SCALIA: And therefore was unlawful.

MR. MORAN: That's right. The -- the initial entry wasn't lawful.

JUSTICE SCALIA: But we didn't hold -- but we didn't hold that.

MR. MORAN: Well, but this -- the Government in Segura never contested the fact that the evidence that was seen and seized during the initial entry should be suppressed. And that's all we're asking for here.

JUSTICE SCALIA: Excuse me? No, I don't understand that.

MR. MORAN: When the officers went in initially in Segura, some evidence was seen and seized at that time, and the Government did not contest that that evidence should not --

JUSTICE SCALIA: No. I'm talking about only the evidence that -- that was the product of the search conducted after the warrant was delivered.

MR. MORAN: That's right.

JUSTICE SCALIA: And that evidence was admitted in.

MR. MORAN: Right, but the --

JUSTICE SCALIA: Even though the entry of those officers was an unlawful entry.

MR. MORAN: The entry -- the initial entry was an unlawful entry. When they came back with the warrant --

JUSTICE SCALIA: Well, no, no. The -- there was no subsequent entry. You said the initial entry was unlawful. Those officers stayed there. Their presence there was the product of an unlawful entry.

MR. MORAN: Their presence was, yes.

JUSTICE SCALIA: Their presence was the product of an unlawful entry, and nonetheless, we admitted in the -- the material that they obtained in the search after a warrant had been obtained.

MR. MORAN: I -- I read Segura as saying that the presence -- the later presence of the warrant, which was in no way tainted by the initial entry, made the officers' presence in the home retroactively lawful from that point. It was unlawful until that point, which is why the Government did not contest the -- the point that all the evidence that was seized during the initial entry up to the point when the warrant was issued had to be suppressed. That's all we're asking for here.

I can imagine hypotheticals in which you have a knock and announce violation and then something happens like in Segura or like in Murray, where you have later action that creates an independent source. But in your typical --

JUSTICE KENNEDY: Suppose the -- suppose the officer -- excuse me, we forgot to knock, but we are police officers. We do have a warrant. We're going to proceed with a search. Please don't be alarmed. We're going to -- does that do it?

MR. MORAN: That might do it. That would be a different case than the case we have here --

JUSTICE KENNEDY: Well, but your -- your point is -- is there -- is that they have to go out and come back in again.

MR. MORAN: You would have to create some sort of analogy to Murray and Segura. Murray and Segura are exceptional cases. There are very rare cases when the Government breaks in and then realizes we shouldn't have done that. We should go get a warrant.

JUSTICE KENNEDY: I agree. Segura -- I forget what it is in torts. It's kind of a supervening, independent cause or something like that.

MR. MORAN: Yes. Yes. And -- and you can have -- imagine such hypotheticals in the knock and announce context. And in the Moreno case in the Ninth Circuit, you have one where you have a knock and announce violation committed in the outer door. No evidence is found in the outer door, but then the officers properly knock and announce at the inner door, and the Court in the Ninth Circuit held that that was proper to seize that. We have no problem with that. That -- that seems like a proper result because ultimately the purposes of the knock and announce rule were vindicated when the officers knocked and announced at the inner door before -- before forcing entry.

CHIEF JUSTICE ROBERTS: Mr. Moran, how -- how long do you think the officers had to wait before they could have entered?

MR. MORAN: In this case?

CHIEF JUSTICE ROBERTS: Yes.

MR. MORAN: From Banks, somewhere closer to 15 seconds. 15 to 20 seconds was --

CHIEF JUSTICE ROBERTS: What would -- if they had done that, what would have been different from what happened in this case?

MR. MORAN: Mr. Hudson presumably would have gotten up from his chair, would have come to the door, would have admitted the officers, and then after --

CHIEF JUSTICE ROBERTS: Why do you presume that? Someone sitting in a chair with gun -- with a gun and the drugs you say would have gotten up and said, oh, it's the police. Let's see what they want?

MR. MORAN: We presume that people act lawfully in response to commands from the police. We do not presume that people will act unlawfully. If the police have evidence or information that someone will, in fact, act unlawfully by trying to dispose of the evidence or by --

CHIEF JUSTICE ROBERTS: Isn't a good sign of what might have happened what actually happened when the police came in, which was there was an effort to hide the evidence?

MR. MORAN: The record does not disclose any effort on Mr. Hudson's part to hide any evidence, Your Honor.

CHIEF JUSTICE ROBERTS: I thought -- where -- where were the drugs found?

MR. MORAN: The rocks of crack cocaine, for which he was convicted, were found in his left front pants pocket.

CHIEF JUSTICE ROBERTS: Where was the gun found?

MR. MORAN: The gun was in the chair.

CHIEF JUSTICE ROBERTS: In the chair?

MR. MORAN: In the chair. There was no evidence that there was any secreting of evidence in this case.

CHIEF JUSTICE ROBERTS: Is there any reason to suppose that if the officers had waited 15 seconds instead of the 3 to 4, that they wouldn't have found the same evidence?

MR. MORAN: It's always possible, Your Honor, but we don't presume that. Just as in Segura, the Court said --

CHIEF JUSTICE ROBERTS: Well, the only -- the only reason they wouldn't have found the same evidence, I take it, is if they -- if -- if the defendants had had additional time to dispose of it.

MR. MORAN: We don't contest that they would have found the same evidence, no. We do not argue that Mr. Hudson or any of the other people in the house would have destroyed the evidence.

JUSTICE SCALIA: Is --

MR. MORAN: We certainly don't make that argument.

JUSTICE SCALIA: Is in the chair the same thing as on the chair?

MR. MORAN: I --

JUSTICE SCALIA: You tell me something is in the chair. Did they stuff it -- stuff it in the cushion or what?

MR. MORAN: It's not really clear from the record, Justice Scalia.

JUSTICE SCALIA: Yes. So I -- I --

MR. MORAN: It's in -- in the chair.

JUSTICE SCALIA: I think it's pretty clear you don't talk of something as being in the chair. It's on the chair unless you stuff it in the chair. I assume he stuffed it behind a pillow or something.

MR. MORAN: I'm not completely clear exactly where in the chair it was.

JUSTICE SCALIA: English is English. You said it was in the chair.

MR. MORAN: In the chair.

JUSTICE SCALIA: Okay.

MR. MORAN: 49 of the 50 States currently suppress evidence following knock and announce violations, just as this Court did in -- in Miller and Sabbath.

JUSTICE ALITO: Well, what do you think is the standard for determining what sort of causal connection there has to be in order to have suppression here?

MR. MORAN: We go back to the Wong Sun fruits test. Is the evidence that was recovered the direct fruit of the violation? In other words, is there a clear, logical connection? Now, my opponent --

JUSTICE ALITO: What's the purpose of the causal connection requirement? What's the reason for having it?

MR. MORAN: Well, it's so -- it's so that there is a -- an obvious connection. Before the court takes the step of -- of excluding evidence, there should be some connection, some clear connection, between the violation and the evidence recovered. But my --

JUSTICE ALITO: And what's the reason for requiring a clear connection?

MR. MORAN: I suppose that it's simply the matter of logic, that evidence that's completely unrelated to a violation nobody would think should be -- should be excluded. But evidence --

JUSTICE ALITO: But why?

MR. MORAN: Well, it's -- it's unrelated. So if, for example, the police break into my house and -- and find evidence -- find nothing in my house -- they illegally break into my house, but then they -- they do a proper warrant search of my office and find evidence, I -- I don't -- I don't see any connection between the illegal search of my house and the legal search of my office, assuming that it was not the fruit of the illegal search of my house.

JUSTICE ALITO: But why? Isn't the reason just a -- just a question of crafting an appropriate remedy for -- an appropriate deterrence --

MR. MORAN: Yes.

JUSTICE ALITO: -- for violations?

MR. MORAN: Exactly. It -- the whole point is deterrence. And so you wouldn't deter the officers who illegally broke into my house by excluding the evidence from my office if -- if -- it may even well be different --

JUSTICE SCALIA: Sure you would. Sure you would.

MR. MORAN: Well, it may well even be a different --

JUSTICE SCALIA: I mean, you'd deterred him more if you threw the whole case out, but we don't do that.

MR. MORAN: No, we don't.

JUSTICE SCALIA: Yes.

MR. MORAN: We -- we limit --

JUSTICE SCALIA: I mean, we -- we insist that the deterrence somehow be related --

MR. MORAN: We do.

JUSTICE SCALIA: -- to the -- and -- and the related usually means that the acquisition of the evidence was the product of the violation. It was caused by the violation. And -- and for that reason, we keep it out.

And here, it's -- it's hard to say that this was caused by the fact that they -- that they entered in a few seconds too soon. So he would have answered the door and they would have seen the stuff.

MR. MORAN: What the knock and announce violation causes, Justice Scalia, is the officer to be illegally in the home. Going back to the common law authorities, the courts have long recognized -- American courts have long recognized that an officer who illegally enters a home, even with a valid writ or a valid piece of paper allowing him to be in the home, if the manner of entry is illegal, he is a trespasser. His entry is -- is void ab initio. And so in that sense, the entry is the cause of the illegal --

JUSTICE SCALIA: Although you say it can be retroactively validated.

MR. MORAN: After Segura --

JUSTICE SCALIA: Yes, in Segura, you can retroactively validate it by -- by getting a warrant afterwards.

Could it be -- have been retroactively validated by knocking and announcing afterwards? I'm -- I'm sorry we came in too soon, and they run back to the door and they knock and announce and wait -- wait 10 seconds.

MR. MORAN: Again, I --

JUSTICE SCALIA: Would that do the job?

MR. MORAN: I concede that it's possible that you can come up with a Segura-type hypothetical. I think the easiest one is the Moreno case from the Ninth Circuit.

JUSTICE SCALIA: The hypothetical sounds ridiculous only if one accepts your explanation of Segura, that -- that it was somehow a retroactive validation.

MR. MORAN: Well --

JUSTICE BREYER: Sorry. I have laryngitis. Can you hear me all right?

MR. MORAN: Yes, I can, Justice Breyer.

JUSTICE BREYER: Why is it retroactive validation? I would have thought Segura and those cases are Silverthorne cases.

MR. MORAN: It is. It's an --

JUSTICE BREYER: All that it is is it's an independent chain of events.

MR. MORAN: It's an independent source.

JUSTICE BREYER: An independent chain of events that almost certainly would have led to the discovery of the evidence despite -- not without -- despite the unlawful entry. And if that's so, all we have is a -- is a set of cases where deterrence is most unlikely to play any significant role because no policeman could possibly counter that kind of thing getting the evidence in --

MR. MORAN: And that's exactly right. And -- and the situation we have in Michigan now is that officers know to a certainty that if they violate the knock and announce rule, nothing will happen. And so that's why in all the other States --

CHIEF JUSTICE ROBERTS: That's not true. There are cases where the violation of the knock and announce rule gives rise to evidence that may be admitted and that would presumably be excluded if you can show that the seizure is related to the violation. The problem here is that the evidence that is being suppressed, as -- as you've suggested, that there's no question that it would have been available if the officers had waited 15 seconds as opposed to 4 seconds.

MR. MORAN: Mr. Chief Justice, none of the parties has been able to identify any cases in which you can point to evidence and say this -- this evidence was produced by the knock and announce violation and nothing else in the house --

CHIEF JUSTICE ROBERTS: The Solicitor General hypothesized one in the amicus briefs. If somebody -- you know, they -- they burst in and someone screams, you know, run away, it's the police, that excited utterance caused by the absence of a knock and announce would presumably be related to the violation and could be suppressed. That doesn't mean that the gun and the drugs that are found in the room is in the same category.

MR. MORAN: If I may make two responses to that. First, the Solicitor General hypothesized such a case but has not identified a single case where that's ever happened. It's purely hypothetical.

But the second point is that excluding that evidence would have no deterrent effect whatsoever because by -- by definition, that's evidence that the police would only get by committing the knock and announce violation. So the police lose nothing by risking the possibility that somebody will make an excited utterance and then say, okay, we won't get to use that excited utterance, but we would never have gotten that excited utterance in the first place. That's not deterrence, Mr. Chief Justice. That's restitution. That's like saying that I can be deterred from stealing something by being told that if I'm caught, I'll have to give it back.

CHIEF JUSTICE ROBERTS: What it is is recognizing that if there is a fruit of the illegal act, it is suppressed so that there is a cost to the illegal act. What it's saying is that not everything that happens after the illegal act is a fruit of the illegal act.

MR. MORAN: I think your question, Mr. Chief Justice, really goes to the worst position language in Nix, and the point is, from our brief, is that this Court has placed the prosecution in the worst position than it would have been had the police acted lawfully dozens, possibly scores, of time -- times.

All the cases in which the Court has noted that the police easily could have obtained a warrant. Most recently in Georgia v. Randolph, where this Court noted that there were two lawful methods for the police to get the cocaine -- the cocaine residue on the straw, but still suppressed the evidence. The police and the prosecution do get placed in a worse position, and that's necessary for deterrence. What --

JUSTICE GINSBURG: Would it have been possible for these police to get a no-knock warrant?

MR. MORAN: It might well have been. I was asked this question last time, Justice Ginsburg, and I'd like to modify my answer. In Michigan, there is no statute governing no-knock warrants, and there's -- there are also no court decisions governing no-knock warrants. And there never will be under the People v. Stevens regime.

One of the nice things that's happened in -- in -- since Wilson v. Arkansas, in fact, before Wilson v. Arkansas in many States, is courts have developed -- developed procedures for police officers to get no- knock warrants, to go to the police and ask for a no- knock warrant.

JUSTICE KENNEDY: Well, what about in this case, which is Justice Ginsburg's question? If the police said, we have reasonable grounds to -- to believe that he has a weapon and we're also looking for drugs that are easily disposable, would that be grounds for knocking -- for not -- for dispensing with the knock requirement?

MR. MORAN: Could the -- could a judge have issued such a warrant in Michigan? Is that your question?

JUSTICE KENNEDY: Well, let's take it step by step. Suppose the police articulate this at the outset --

MR. MORAN: It could well --

JUSTICE KENNEDY: -- and under -- under State procedures, they're allowed to make the on-the-spot judgment. Would that -- would those facts suffice to allow them to enter without the knock?

MR. MORAN: If they had specific information along those lines, that -- that there was evidence hidden in places or -- or stored in places where it could easily be disposed --

JUSTICE STEVENS: Well, is that correct? I thought in most States, there has to be a statute that authorizes a non-knock warrant.

MR. MORAN: In most States --

JUSTICE STEVENS: And that most States do have such statutes. And we got this case because Michigan chooses to go on on a separate path.

MR. MORAN: Most States do have statutes, but a few States by court decision have allowed for the issuance of no-knock warrants. My point --

JUSTICE SOUTER: Even -- even if Michigan doesn't, I mean, that has nothing -- as I understand it, that -- that doesn't affect the -- the answer to the Federal question that we have because, as I understand it, we -- we can -- we can take as good law that even with a warrant that does not have a no-knock authorization, if the police have a justification for going in without knocking, so far as the Fourth Amendment is concerned, the search is still good.

MR. MORAN: That's right.

JUSTICE SOUTER: Isn't that correct?

MR. MORAN: Absolutely.

JUSTICE SOUTER: So what we're really arguing is what -- what is Michigan law on the subject, but the -- the issue we've got is not Michigan law.

MR. MORAN: That's right. And this case comes to us in the posture in which --

JUSTICE GINSBURG: But this is a -- this is a place -- a case in which the warrant was for drugs. Is that not so?

MR. MORAN: It was.

JUSTICE KENNEDY: Well, so in -- in this case, they could have entered in your view if they had specific knowledge of the gun and disposable contraband.

MR. MORAN: Yes, after Banks and -- and Richards, especially Richards, if the police had reasonable suspicion that you had contraband in a position where it could be easily disposed and if they had information about the weapons that could be used to resist the police entry, then yes, there could have been a -- a legal no-knock entry.

JUSTICE SCALIA: What about just the former without the latter? I thought the former alone would be enough.

MR. MORAN: Either would be. That's correct, Justice Scalia.

JUSTICE GINSBURG: Going back to my question, isn't it then a reasonable assumption, based on the police experience in case after case, that where there -- where narcotics are housed, there is often a gun and there is ease of disposal, couldn't the police simply say this is a narcotics search and therefore we don't need to knock and announce because those circumstances will be present in most cases?

MR. MORAN: No, because this Court unanimously foreclosed that argument in Richards v. Wisconsin by holding that there must be a particularized showing for the particular case. That particularized showing I will gladly concede will be easier to make in a narcotics case than it would be in a -- in a stolen property case.

But it wasn't made in this case, and this case comes to this Court on the posture that the prosecution has conceded, at every step of the way, that that particularized showing was not made here and that, therefore, there was a knock and announce violation.

CHIEF JUSTICE ROBERTS: I'm sorry. A particularized showing of what?

MR. MORAN: That in this particular case, it's likely that the drugs would be in an easily disposable situation and that the occupants would be armed and ready to resist the police entry. And there was no such showing made here.

CHIEF JUSTICE ROBERTS: I --

MR. MORAN: The prosecution didn't even attempt to make such a showing.

CHIEF JUSTICE ROBERTS: I'm vaguely recalling cases from the court of appeals in the D.C. Circuit that accepted a presumption that if there are drugs around, there are likely to be firearms around. Are you saying that that's inconsistent with the Richards decision?

MR. MORAN: That might not be inconsistent, but the -- the -- to follow that up with, therefore, you can do a no-knock entry automatically is inconsistent with the Richards decision.

The --

JUSTICE STEVENS: May I ask this question? As I understand it, the prosecutor conceded a violation of the knock and announce rule.

MR. MORAN: Yes.

JUSTICE STEVENS: And I'm just wondering. In Michigan, since there's no adverse effect to it, do the prosecutors routinely concede that there's a violation because there's no point in litigating it I suppose?

MR. MORAN: Well, I don't even think we get that far, Justice Stevens. Motions to suppress aren't filed. There's no point filing a motion to suppress except for the -- the fact that this case is pending in this Court. There's no point for --

JUSTICE STEVENS: So that if the issue arises, you can assume the prosecutor will always say, yes, we'll assume there was a violation. There would be no reason not to assume that.

MR. MORAN: That's right.

JUSTICE STEVENS: So you'll never really litigate in Michigan how far they can go before they violate the rule.

MR. MORAN: It's a dead letter in Michigan.

JUSTICE SCALIA: But I assume that lawsuits are allowable if -- if knock and announce is -- is not observed, and if you intrude upon someone in a state undress.

MR. MORAN: Michigan --

JUSTICE SCALIA: Isn't a civil lawsuit bringable?

MR. MORAN: Michigan has a particularly vigorous State immunity statute that makes it effectively impossible to sue for a -- a knock and announce violation. I have not found a single Michigan case in which anyone has successfully sued for a knock and announce violation.

You can sue in Federal court under section 1983, but there you run into various doctrines, especially including qualified immunity.

I made the claim the first time and it still hasn't been contradicted by my opponents. We've not been able to find any cases, published or unpublished, in which anyone has collected anything other than nominal damages anywhere in the United States --

CHIEF JUSTICE ROBERTS: But those doctrines that you're talking about would be overridden on the hypothetical that you want us to be concerned about. In other words, you're saying if you don't suppress the evidence, there's going to be no incentive to comply with the law. So they're going to deliberately violate the law. Well, if they're deliberately violating the law, qualified immunity isn't going to help them very much.

MR. MORAN: Qualified immunity would still protect them to the extent that any reasonable officer could have thought that a -- a no-knock entry was valid. I cited a number of cases, for example, where innocent people have been shot following entries into wrong doors, and qualified immunity has been granted to the officers.

JUSTICE SCALIA: Wait a minute. The government is not arguing here that -- that it's valid. It's just arguing that though it is invalid, the punishment for it should not be to let the criminal go. That's -- that's all they're saying.

MR. MORAN: That -- that is their argument.

JUSTICE SCALIA: The punishment for the invalidity should not be the -- the inadmissibility of all of the evidence of the crime that was found.

MR. MORAN: That --

JUSTICE SCALIA: Well, that's quite different from saying that it's -- that it's valid. So I think they acknowledge that -- that a lawsuit against an officer who knowingly dispenses with -- with knock and announce because, as you say, he says there's -- there's no consequence, but there is a consequence. He can be sued.

MR. MORAN: I assume --

JUSTICE SCALIA: And sometimes he may be going into the wrong house and the person suing him may not be a criminal, but may be some -- some innocent -- innocent bystander.

And -- and what about -- you know, you say there's no incentive to knock and announce. There -- there may -- you don't know any Michigan cases in which a -- a civil suit has succeeded, but I know numerous cases in which police who -- who burst in without knocking and announcing expose themselves to danger, that is, to being shot at by a -- by a householder who doesn't know that they are the police. Isn't that enough of -- of an incentive, the fact that you may lose your life?

MR. MORAN: No, Your Honor, because I think what some officers will do is exactly what Officer Good did in this case, which is shout police and then burst in immediately. So they'll do the announce part, which protects the police, to some extent, from being shot, but they will skip the rest of the knock and announce requirement, which is to wait some reasonable amount of time to allow the householder to make himself more dignified, to get to the door, to answer the door, to admit the police in a dignified manner.

You raise the point that lots of innocent people are subject to search warrants. Thousands of cases every year of -- of people who didn't do anything either --

JUSTICE ALITO: Well, I think you said the -- you thought the police here had to wait what? 15 seconds? What was the figure you gave?

MR. MORAN: Well, from Banks, this Court ruled that 15 seconds -- 15 to 20 seconds was an appropriate time for a drug search.

JUSTICE ALITO: Suppose they waited 10 seconds. And so there would be a -- a constitutional violation? Why would suppression be appropriate in that situation? Why would it be in any way proportional to the -- to the violation that occurred?

MR. MORAN: Well, if it was 10 seconds, Justice Alito, the government still might have an argument. 15 seconds was enough in Banks. The Court did not say --

JUSTICE ALITO: Well, wherever the line is, suppose they're just -- they're just slightly on the wrong side of the line?

MR. MORAN: I think as a practical matter, that if the police are just very slightly on the wrong side of the line, the courts are not likely to hold that there was a knock and announce violation. But when you have a flagrant violation like here --

JUSTICE ALITO: Then you're -- you're contradicting the premise.

MR. MORAN: Well, in a case like -- in a -- if a court were to hold that the police did violate the knock and announce requirement by coming in -- by coming in, by not giving the person a reasonable amount of time to come to the door or to make himself presentable, then yes, the evidence should be suppressed because those officers need to be deterred. The -- the exclusionary rule is all about deterrence, and is there any method that will deter officers from violating the knock and announce requirement other than excluding the evidence by teaching them through example that next time you need to wait longer? You need to wait a reasonable amount of time for someone to come to the door unless you have facts suggesting that waiting a reasonable amount of time would defeat the purposes of the search.

JUSTICE SCALIA: What about -- you talk about deterrence. What about their not getting promoted? I assume that -- that police departments, even if you have some maverick officers, that the administration of the police department teaches them that they have to knock and announce. Or if it doesn't teach them that, then you do have a 1983 cause of action against the city, not just the officers. And that -- you know, that's a deep pocket.

MR. MORAN: I very seriously doubt officers such as Officer Good will not be promoted because of the violation that he committed --

JUSTICE SCALIA: Why? Really?

MR. MORAN: -- in a case like this.

JUSTICE SCALIA: You -- you know, I'm the police commissioner and I have a policy that you -- you obey the law, you knock and announce, and -- and I know that this particular officer disregards it all the time. You really think that's not going to go in his record?

MR. MORAN: I do, Justice Scalia, and I think it's inconsistent with Mapp in which the Court recognized that other remedies have proven completely futile in enforcing the -- the Fourth Amendment.

JUSTICE SCALIA: Mapp was a long time ago. It was before 1983 was being used, wasn't it?

MR. MORAN: It was before 1983 was --

JUSTICE SCALIA: You bet you.

MR. MORAN: -- being used. But I don't think section 1983 has changed the landscape here. I -- I don't think Mapp is ripe for overruling, and in fact, the Criminal Justice Legal Foundation, one of the amici for the other side, concedes that tort remedies cannot, at this time, substitute for the exclusionary rule.

If there are no other question, I'll reserve the balance of my time.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Moran.

Mr. Baughman, we'll hear now from you.

ORAL ARGUMENT OF TIMOTHY A. BAUGHMAN

ON BEHALF OF THE RESPONDENT

MR. BAUGHMAN: Mr. Chief Justice, and may it please the Court:

Justice Robert Jackson once said that when he was arguing cases before the Court, he always gave three arguments: the well-structured argument he rehearsed, the disjointed and confused argument he delivered to the Court, and the brilliant argument he thought of in the car on the way home. I have the rare opportunity to deliver the argument I thought of in the car on the way home.

(Laughter.)

MR. BAUGHMAN: But I'm going to refrain, mindful of the fact that this is our -- our second time through and try to hone in on -- on what I think are some critical points.

A search warrant, a judicial command, must be obtained from a neutral and detached magistrate. It must particularly describe the place to be searched and the things to be seized, and it must be issued based on probable cause drawn from information which is sworn to are affirmed -- or affirmed. If these requirements are met, the privacy of the described premises will be invaded, and any privilege the occupants might have to withhold evidence or contraband from the police is abrogated.

But that command must be executed in a reasonable fashion. And so the police may not bring third parties into the premises who are unnecessary to the execution of the warrant. They may not search in places where the items described may not be found. They may not cause unnecessary damage to property, and they may not use force to accomplish the entry unless consent to enter is denied either explicitly or implicitly or unless entering immediately is reasonable under the circumstances to avoid the destruction of the evidence or harm to the officers.

If no valid warrant exists in the first place, then -- and no exception exists, then the privacy of the dwelling has been unlawfully invaded. It never should have happened. But if a valid warrant exists and some error occurs in its execution, it is not the invasion of privacy which should not have occurred that is commanded by the warrant.

JUSTICE SOUTER: And you -- you concede that there was error in execution here? You concede that there was a violation because -- technically because there was no knock?

MR. BAUGHMAN: Yes.

JUSTICE SOUTER: Why do you concede that? You've got a case in which, as I understand it, not only was the evidence but the warrant itself an indication not only that drugs were present, but that guns were present. It's perfectly true we don't have a general rule that anytime you do a drug search, you can do a no-knock, but in this case you had specific evidence that there were firearms there. And based on what I've seen in the case, I don't know why Michigan did not argue that, in fact, it was justified to go in without knocking.

And I'll be candid to say you -- to tell you that the fact that Michigan does not make that argument suggests to me that Michigan is trying to structure a case in which it's going to have the best shot to -- to get the exclusionary rule out of the way here. Why don't you claim that the search was lawful?

MR. BAUGHMAN: Well, let me first say this case was not structured to try -- to try to -- to get it here on our -- on our part. I think initially the prosecutor handling the hearing here reached the conclusion that Richards precluded an argument that a no -- that the failure to knock and announce was justified here. But --

JUSTICE SOUTER: Well, Richards precluded a general rule, but it didn't preclude you from arguing in a specific case, and it's the fact that the prosecutor and, hence, all the way up the line to you do not argue that is -- is what I don't understand.

MR. BAUGHMAN: Well, again, I -- I think it would be an interesting argument to revisit Richards on this proposition.

JUSTICE SOUTER: I don't think we have to revisit Richards. I -- I think what -- what I'm -- what I'm concerned is that you don't make an argument based on the evidence in this case that you had probable cause to believe that there were going to be guns facing you when -- when you went in the door and therefore the knock was not required.

MR. BAUGHMAN: Again, I think the -- the belief of the prosecutors, as the case went forward, was that because that belief, the -- you're correct. Guns were described as things to be seized in the warrant. The probable cause for that was not any specific knowledge about a gun in the house. It was the officer's general experience that when I execute search warrants for drugs, guns tend to be there. Richards seems to say, at least it certainly could be argued, that's not sufficient. You can't make that decision based on experience that drugs and guns go together.

JUSTICE SOUTER: Well, are you suggesting -- did -- did the warrant -- I don't know this. I should but I don't. Did the warrant authorize seizure of guns as well as --

MR. BAUGHMAN: Yes, it did.

JUSTICE SOUTER: -- drugs? Well, are you suggesting that the -- the gun portion of the authorization was, in fact, invalid?

MR. BAUGHMAN: No. I -- I don't because I believe probable cause can be based on the experience of officers --

JUSTICE SOUTER: Okay.

MR. BAUGHMAN: -- without specific knowledge of the --

JUSTICE SOUTER: If -- so -- in any case, at -- at the moment that you got the warrant, you -- you had, in fact, a -- a finding by a trial court, or a -- whoever the issuing magistrate was, that there was probable cause to believe that you were going to confront guns as well as drugs inside. And -- and Richards does not seem to me to be a good reason, under those circumstances, to concede that you didn't have a basis for -- for dispensing with the knock.

MR. BAUGHMAN: It may not have been a good reason, but it was the reason in that the prosecutors believed that the rejection of the drugs and guns always go together as justifying a crime. Not knocking and announcing in Richards meant that the determination in this case that guns were on the premises based on the officer's experience that drugs and guns go together, not any specific knowledge about a gun was inadequate then to forgive knocking and announcing. That may have been a misjudgment, but it was a belief that Richards foreclosed that. It was not an attempt to set the case up. We had the Stevens case in Michigan.

JUSTICE KENNEDY: Well -- well, do you think just as an empirical matter that in most cases where there's known to be guns plus drugs, the police will enter without knocking?

MR. BAUGHMAN: No. I -- I don't believe that's the case. I think if there's specific knowledge that there are guns on the premises, yes, absolutely.

JUSTICE KENNEDY: There's -- there's specific knowledge.

MR. BAUGHMAN: Yes. They knew -- I think then they would enter without knocking. If -- if the --

JUSTICE SOUTER: There was specific knowledge here.

MR. BAUGHMAN: Well, no, it's knowledge based on experience.

JUSTICE SOUTER: Well, you got a -- you got a warrant --

JUSTICE KENNEDY: It's in the warrant.

JUSTICE SOUTER: -- that said look for them.

That's about as specific as you can get.

MR. BAUGHMAN: I understand but the facts in the affidavit justifying looking for guns was in my experience drugs and guns go together.

JUSTICE SOUTER: Well, you can't have it both ways.

JUSTICE STEVENS: But, nevertheless, was not there a finding that there was probable cause that there was a gun there?

MR. BAUGHMAN: Yes.

JUSTICE STEVENS: All right.

MR. BAUGHMAN: I would be happy to -- to, in a different case, make the argument that although Richards says a court cannot say that knock and announce is forgiven every time a drug warrant is executed on the theory that experience teaches that drugs and guns go together. I'd be happy to argue that that holding does not apply when a judge determines, in issuing the warrant, that drugs and guns go together, so I'm putting it in the warrant. I'd be happy to argue that case.

At this time --

JUSTICE SCALIA: Don't argue it to me. It doesn't make much sense.

(Laughter.)

MR. BAUGHMAN: Prosecutors believed that Richards couldn't be avoided by putting the drugs and guns go together into the warrant instead of --

JUSTICE STEVENS: May I ask this?

MR. BAUGHMAN: -- the judge --

JUSTICE STEVENS: May I ask this question about the practice in Michigan? Since People against Stevens and People against Vasquez have been decided, are there any cases, other than this one, in which a prosecutor has raised the knock and announce argument that got litigated all the way to the appellate court?

MR. BAUGHMAN: Yes, there have been a handful of cases where defense attorneys have filed a motion, despite People v. Stevens, and then they -- they have lost because of Stevens.

JUSTICE STEVENS: So but there really is no incentive for the prosecutor to fight -- argue about this anymore in Michigan, is there?

MR. BAUGHMAN: No. Now, in the criminal case, the prosecutor is responsible -- be, as it was in this case, although the judge refused to follow Stevens --

JUSTICE STEVENS: Well, it concedes there's a violation.

MR. BAUGHMAN: -- there should be no hearing.

They're not conceding the violation. They're simply saying the -- a violation is irrelevant to the question of the admission of the evidence, so we should not litigate it.

JUSTICE STEVENS: So there's no point in litigating it.

MR. BAUGHMAN: Exactly.

JUSTICE STEVENS: So it's a functional equivalent of conceding a violation in every case because there's simply no effective remedy here.

MR. BAUGHMAN: Well --

JUSTICE STEVENS: No effective remedy in the litigation itself.

MR. BAUGHMAN: In the criminal --

JUSTICE STEVENS: Of course, there's always the possibility that the officer will be disciplined by his very zealous superior, I guess.

MR. BAUGHMAN: Or -- or civil litigation. There is no -- there is no exclusion. Yes, that's correct.

JUSTICE SOUTER: Do you -- do you dispute -- your -- your brother on the other side said in his argument that he had not heard a dispute about this. But do you dispute his claim that there has never been any -- at least in recent history, any -- any civil judgment actually rendered against anyone in the officer's position?

MR. BAUGHMAN: I -- I am not aware of one from Michigan. I am aware that there have been civil judgments against officers from other jurisdictions. I'm not aware of one in Michigan. I know there have -- there are some suits that have been brought in the Eastern District that are pending. And -- and part of the difficulty is civil suits can be brought. They can be settled. There can even be trials and damages awarded, and they won't be in the reports. They're not in the F. Supp. 's. They're not in the --

JUSTICE SOUTER: But we don't -- we don't have any indication that there's an effective deterrence then in civil suits. Maybe there will be some day, but we haven't seen it yet in Michigan, I take it.

MR. BAUGHMAN: I think one could also make the argument that that cuts the other way. The fact that there are not a lot of reported decisions may mean there's not a lot of violations going on, that the police are not routinely kicking down doors without knocking and announcing when they should, and that's why they're not being sued.

JUSTICE SOUTER: And it may mean that -- that potential plaintiffs say if the courts are winking at this in the criminal case, we don't have much chance of getting a -- a verdict in a civil case.

MR. BAUGHMAN: No. It's not --

JUSTICE SOUTER: We don't know, but that might be the case too, mightn't it?

MR. BAUGHMAN: It might be, but it's not been my experience that either -- either the criminals or certainly innocent parties, people -- probable cause, after all, doesn't mean certainty. People who have had damage done or physical injury occur have been -- are shy about suing the government in those circumstances.

JUSTICE SCALIA: Is there any evidence that the citizens -- that Michiganders are less litigious than people in other States?

MR. BAUGHMAN: That certainly hasn't been my experience and certainly not in my county.

JUSTICE SCALIA: So -- so the mere existence of suits in other States ought to suffice as something --

JUSTICE KENNEDY: I -- I --

JUSTICE SCALIA: -- that's -- that's a deterrent. Shouldn't it?

MR. BAUGHMAN: I would -- I would think so.

JUSTICE KENNEDY: I still don't understand where -- where we are with guns. You -- you have a specific finding in a warrant that says there's probable cause there's going to be a gun, and there's drugs. I take it your position is that this allows you to enter without knocking.

MR. BAUGHMAN: It would be my position. I would have thought, as the prosecutor thought here, that a probable cause finding that guns are in the house, based not on any specific knowledge about guns, but based on experience in similar circumstances, was not sufficient to satisfy Richards in terms of not knocking. I would certainly make the argument that it ought to be, but I would have not criticized the prosecutor --

JUSTICE STEVENS: But why would you bother making the argument? The evidence can't be suppressed. I don't understand why -- why would there ever be any litigation over this issue in a criminal case?

MR. BAUGHMAN: And -- and I think Your Honor is correct. The prosecutor's point in this case was we shouldn't litigate --

JUSTICE STEVENS: And can you cite me any other example of a -- a violation of the Fourth Amendment? Maybe we shouldn't have held it's a violation. I understand that argument. Is there any other area of Fourth Amendment law in which the violation of the Fourth Amendment is not followed by a suppression ruling?

MR. BAUGHMAN: Well, certainly. Let me give an example. One of the circumstances that I indicated that the police -- a manner in which the police must behave when reasonably executing a warrant is not to look in places where the items sought cannot be found. If the police were searching a house for stolen computer monitors, a large object, and as they were searching for them, they opened the desk drawer where the monitor could not be and they shut it, and they found computer monitors in the home, the -- this Court has never addressed the question, that I'm aware of, but the law is uniform in the country that you would not suppress the computer monitors.

JUSTICE BREYER: Well, now you're talking about other cases in other courts. I looked through with my law clerks 300 cases since Weeks, not Mapp, Weeks. That's what we're talking about, 1914. I couldn't find in 300 cases one single Supreme Court case that did not suppress evidence where there was a Fourth Amendment violation with one exception. The exception is there are sets of cases where deterrence is really not a factor. For example, good faith; for example, it isn't going into a criminal proceeding. Okay?

Now, what I'd like you to do is to tell me if I missed some, which is certainly possible, or second, if you want us to change the rule and go back 300 years or 300 cases back before 1914, or are you going to tell us that deterrence doesn't play a role here or whatever you want? I want to put to you the state of the art as far as I can see it.

MR. BAUGHMAN: It would be my position that in all of those cases, there was a causal connection between the evidence found in the --

JUSTICE BREYER: Well, there's a causal connection absolutely here. It is a but-for connection.

MR. BAUGHMAN: Well --

JUSTICE BREYER: This person being in the room and a child of 2 would know that if you get into a room, as a result of your being in that room, you're likely to find evidence. So it's both but for and it fits within the problem. There we are.

That's the same, by the way, as it is with making a false oath to a magistrate. You make a false oath to a magistrate. That permits the magistrate to get into the house with -- the policeman gets in there with a warrant. It doesn't take the court long to suppress that. About a second. And -- and how -- how is this somehow different?

MR. BAUGHMAN: Let me try to give a couple of examples from different situations to make my point that there is a difference.

JUSTICE SCALIA: Well, give some cases first. He's talking about actual cases.

MR. BAUGHMAN: I --

JUSTICE SCALIA: I mean, isn't it possible that if his law clerk overlooked Segura, he overlooked other cases as well.

JUSTICE BREYER: No. He read Segura. We read Segura, which happens to be a case --

JUSTICE SCALIA: There was unquestionably, was there not, a violation of the Fourth Amendment in Segura?

MR. BAUGHMAN: Your Honor is correct, and I am confident that when the officers returned with the search warrant, with the officers already inside, they did not knock and announce when they when they returned to the --

JUSTICE BREYER: He is not -- well --

CHIEF JUSTICE ROBERTS: Isn't that an example where there's a violation of the Fourth Amendment that is brought up and yet suppression is not the --

MR. BAUGHMAN: Because of the habeas concerns of comity that this Court has, that's correct. It is also not suppressed.

JUSTICE BREYER: -- important exception. The exception which comes from Silverthorne is when there is an independent chain of events such that it will be -- not could be, but would be -- in fact, discovered anyway, despite the unlawfulness -- Silverthorne -- Holmes says, of course, you don't keep it out then because that's not going to impact deterrence. Now, that's Segura. That's Silverthorne. That's case after case. Of course, I accept that. And if you can show that this case somehow fits within that chain, fine. Then I -- then I maybe appear I have my mind made up on this, but I'm open to change.

MR. BAUGHMAN: Well, let -- let me try a couple of examples that --

(Laughter. )

MR. BAUGHMAN: -- that I -- that I hope might make the point. It is -- and my -- my belief is -- it's common in human experience that things can be accomplished either by command or by permission when the manner of doing so, the manner in which they end up being accomplished is subject to criticism. And let me give a couple quick examples.

If, when she was young, I sent my daughter to her room -- and that was rare, but if I sent her to her room and she stomped up the stairs and slammed the door, she would be in further difficulty not because she carried out my command by going to her room, but because she stomped up the stairs.

If a young athlete is told by his coach, catch the ball with two hands and he catches it with one, he is admonished not because he caught the ball but because he caught it with one hand.

And if a football player taunts the opposing team as he crosses the goal line, he gets a penalty not because he crossed the goal line, but because he taunted the other team.

These strictures are not prerequisites to the conduct. I do not tell my daughter go to your room but only if you don't stomp up the stairs --

JUSTICE BREYER: No, no. That's -- I -- I understand that point from your brief and I'm glad that you brought it up. But I have never -- I have never seen Fourth Amendment matters cut that finely. I have never seen the courts say I want to go back to the reason why this policeman is unlawfully in the room and then try to connect each piece of evidence with that reason. Rather, they ask is he unreasonably and unconstitutionally in the room.

So my concern about that, which I'd like you to address, is if we took that approach, I think we'd be doing it for the first time, and we'd let a kind of computer virus loose in the Fourth Amendment. I don't know what the implications of that are. I can't tell you what you're saying is illogical. It's not illogical. It's conceivable, but it strikes me as risky and unprecedented.

MR. BAUGHMAN: I think as -- as -- in the examples I gave, knock and announce works the same way. These are not prerequisites. They're rules of conduct. They are principles of behavior. It's not do this only if you behave in this manner. It's do this and behave in this manner while doing it. And if you don't behave in the manner we have prescribed, the question is what flows from that misbehavior, not from the achievement of the end.

JUSTICE STEVENS: It seems to me that your example it's -- stomping up the stairs is like failing to knock and announce.

MR. BAUGHMAN: That's correct, and -- and the police are not illegally on the premises and my daughter --

JUSTICE STEVENS: And so there should be a deterrent for the stomping up the stairs, and you've got no deterrent for the knock and announce.

MR. BAUGHMAN: Well, and part of what -- part of what I wanted to say also to Justice Breyer and I think also works here is it's -- the suggestion seems to be that knock -- that a Fourth Amendment violation -- the question of whether one has occurred and the question of whether or not the -- to apply the exclusionary rule are one in the same. And this Court has never said that. To me that would be a dramatic changing of the law of this Court. This Court has always said those are separate questions, and I think petitioner's argument conflates the two.

We first ask whether there has been a constitutional violation and then we say -- this Court has said the premise for application of the exclusionary sanction is whether or not the challenged evidence is the product of the illegal government activity. So once we establish that there has been a constitutional error, the question becomes is the challenged evidence the product of it. And just like the touchdown is not the product of the taunting, the entry into the premises is not the product of the failure to knock and announce. It's the product of a warrant, which the judge issued commanding the police to enter.

JUSTICE SOUTER: Isn't -- isn't the problem that in -- in fact, it's the product of both? The warrant alone does not get the police officer into -- into the building. It -- it is in fact the entry that gets the police officer into the building, the execution of the warrant. The judge has to do something. The police officer has to do something.

And the question that I think we face when we say is the later search the product of the entry, is -- is what your -- what -- I think a point that -- that counsel on the other side was making. It's a pragmatic point. Where do we draw the line of causation? And his answer is -- and I think the -- the answer of the cases that Justice Breyer was -- was referring to -- is this. We draw it in a way that will allow us to deter illegal police conduct, and if we engage in this slicing process of causation that you talk about, there will be no deterrent for the violation of the no-knock rule. If instead we say, yes, this is enough the product that we ought to deter -- that we ought to -- to respond to it in a way that will deter the no-knock and therefore we find causation and we get deterrence. What is fallacious about that argument?

MR. BAUGHMAN: There's nothing fallacious about the argument if one accepts that excluding the truth in -- in a criminal proceeding is a fair tradeoff in that circumstance --

JUSTICE SOUTER: We do that every single time we exclude a piece of evidence in every suppression case, don't we?

MR. BAUGHMAN: But -- but the Court has --

JUSTICE SOUTER: Don't -- don't we?

MR. BAUGHMAN: Yes, we do. But the Court has said that because that's a dramatic thing to do, because it -- it has a high societal cost, it should only be done when there is a causal connection, when the evidence is the product of the police wrongdoing.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Baughman.

MR. BAUGHMAN: I thank the Court.

CHIEF JUSTICE ROBERTS: Mr. Salmons.

ORAL ARGUMENT OF DAVID B. SALMONS

ON BEHALF OF THE UNITED STATES,

AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

MR. SALMONS: Thank you, Mr. Chief Justice, and may it please the Court:

Suppression would not be an appropriate remedy in this context for two primary reasons. The first is if the knock and announce rule does not protect the individual's privacy interest in the underlying items seized and, instead, it seeks to limit discrete risks related to the execution of warrants that property will be damaged, that officers will be mistaken for intruders, or that occupants will be caught in embarrassing situations. That makes the knock and announce rule similar to other Fourth Amendment requirements related to the manner of executing warrants such as --

JUSTICE SOUTER: Well, what -- what do you say to Justice Breyer's argument that we haven't previously analyzed suppression by tracing or trying to trace the causal connection between a particular piece of evidence and a particular reason for the rule that was broken? What we have said in the past is if the rule or the standard is violated and the search is therefore unreasonable, the evidence doesn't come in.

You're proposing a -- a different causal analysis. You're proposing a causal analysis that requires the connection between a piece of evidence and the particular reason for one of these standards in every case in which suppression is -- is requested.

Number one, do you agree that that -- that would be a departure, as Justice Breyer suggested? And number two, what would be the justification for that?

MR. SALMONS: It would not be a departure, Your Honor. In fact, that's common practice in the Fourth Amendment area. This Court, for example, in New York v. Harris looked to the purposes of the rule against arrest in the home absent a warrant and to conclude that it wasn't appropriate to suppress a statement made at the station even though it assumed that there was but-for causation. And this Court in Cruz did a similar analysis. It's very common to look to the purposes served --

JUSTICE BREYER: It's common, when you have a chain of causal connection, to say it ends somewhere. It's common, and in Harris, it ended once they left the home and now they're over in the station.

MR. SALMONS: But --

JUSTICE BREYER: This isn't over in the station. This is in the home. You speak of interests, but this doesn't interests.

What about Boyd? I mean, the most famous statement in Fourth Amendment history to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense. But it is the invasion of his indivisible right of personal security, personal liberty, and private property.

Now, I thought -- 1886 -- that's what's governed these cases for about 100 -- and far more, a century and a half or a quarter. And -- and the -- then suddenly you say, well, it's this interest in the one or the other one. I mean, doesn't that describe it?

MR. SALMONS: No, Your Honor. I mean, certainly that's -- that is one of the principles underlying the Fourth Amendment, but this Court has looked to the types of considerations I'm discussing, and I will give you some examples. And we think, in fact, the knock and announce rule is very analogous to -- for example, to a claim of unnecessary property damage or to a claim that the officers brought the media along when they shouldn't or that they used excessive force.

CHIEF JUSTICE ROBERTS: There's no doubt in here that an invasion of the home was authorized by the warrant. Right?

MR. SALMONS: That's correct.

CHIEF JUSTICE ROBERTS: The interest we're talking about is not the sanctity of the drawers. It is 10 seconds that the officers should have waited additionally, according to the -- to your brother.

MR. SALMONS: That's correct. The illegality --

JUSTICE BREYER: Correct? I'm sorry. That is correct? I -- I thought that this warrant does not say you can enter the house without knocking.

I mean, I have a warrant. This warrant lets me search the house in daytime. I search it in nighttime. Is my search authorized?

MR. SALMONS: I don't think that would be a warrantless search or I don't think that would be a violation. That might be --

JUSTICE BREYER: I have a warrant --

MR. SALMONS: -- of the manner of execution.

But again, if I may --

JUSTICE BREYER: What -- what happens with my example? I'm curious. That's not a rhetorical question.

I have a warrant which says, search 1618 5th Street. I search 1518 5th Street. Was it a warrant -- a warrant back search?

MR. SALMONS: Well --

JUSTICE BREYER: I don't have a warrant to search 1518. I don't have a warrant that allows me to come in in the middle of the night when it says day, and I don't have a warrant here that allows me to come in without knocking. So where's the warrant?

MR. SALMONS: I think the question in that case, Your Honor, would be about reasonable reliance on the warrant and whether it was a reasonable mistake. And if it wasn't, then it would be a warrantless search.

And if I may just focus the Court -- attention on the claim of unnecessary property damage. We think that's quite analogous here in part because the typical -- in the typical case, a premature or unannounced entry will be a forcible entry. But whether the claim is that the officers entered a few moments prematurely or that they unnecessarily used a battering ram on the door, in either case the -- the violation doesn't relate to the privacy interests and the items to be seized and shouldn't result in suppression. And in addition to that --

JUSTICE SOUTER: Well, it does relate to the privacy interests, and we've seen the explanation. One of the reasons for requiring the knock is that there is enough respect for a person's home, a person's privacy to say the police should not barge in like an invading army.

MR. SALMONS: Well, that certainly is --

JUSTICE SOUTER: That is a respect for privacy.

MR. SALMONS: That -- that certainly is true, Your Honor, but that -- that is not a protection --

JUSTICE SOUTER: And that is involved -- and that is -- that is the whole point of -- of knock and announce, isn't it?

MR. SALMONS: No, Your Honor. The point of knock and announce is a more limited privacy. It's not related to the privacy of the items to be seized. That's separate. And that's why it makes it like the claim of unnecessary --

JUSTICE SOUTER: We're talking about the privacy of individual in his home, and the reasonableness of the search depends upon the reasonableness of invading the individual's privacy in his home. Is that not the general rule?

MR. SALMONS: No, Your Honor. I think what -- what focuses in terms of suppression is whether the government has obtained an evidentiary advantage as a consequence of the illegality. Here, the illegality was the failure to delay a few additional moments before entry.

JUSTICE SOUTER: Then there will never be a suppression of -- of evidence specified in a warrant when the warrant's no-knock component is violated --

MR. SALMONS: But --

JUSTICE SOUTER: -- because we -- we will say -- in every single time, following your argument, you will -- we will say the -- the violation had nothing to do with the authorization to seize the evidence. The violation simply had to do with the -- with the -- the niceties and the risks involved in entering. So if we accept your argument, no-knock is -- is a dead duck, isn't it?

MR. SALMONS: I don't think so, Your Honor. If I may try to explain. I think as a general matter, with regard to physical evidence in the home that's within the scope of the search warrant, that you're -- you're probably right. Most of the time, that evidence will come in.

We think that there are probably at least two areas that might lead to suppression in these cases. One is the -- the type of statements that the Chief Justice mentioned earlier. Another might be what you might call proximity evidence, that the officers went in prematurely and as a result, they saw a --

JUSTICE STEVENS: Mr. Salmons, may I ask you this -- this question? If you'd been the prosecutor in this case and you had -- knew that the evidence would be suppressed if there were a constitutional violation, would you have conceded that there was a constitutional violation in this case?

MR. SALMONS: Well, I don't think -- I think there is a reasonable argument that could be --

JUSTICE STEVENS: Yes or no.

MR. SALMONS: I'm -- I'm attempting to answer that, Your Honor. I think there's a reasonable argument that could be made in this case that there wasn't a violation. I think it was probably a sort of strategy.

JUSTICE STEVENS: So you would not have conceded.

MR. SALMONS: I can't -- I can't second guess their strategy here to concede it.

JUSTICE STEVENS: But you would not have conceded. If you -- if you thought there was a reasonable argument, you would not have conceded that there was a violation, would you?

MR. SALMONS: I think I probably would have argued in the alternative, Your Honor. I think that's probably the safest --

JUSTICE KENNEDY: Can you tell me what -- what happens if there's a violation of the daytime warrant provision in -- in a search warrant and the search is at night? Do we suppress?

MR. SALMONS: I think generally no, Your Honor. I think -- and I would -- I would --

JUSTICE KENNEDY: Are there cases -- are there cases on that?

MR. SALMONS: I -- not in this Court. There -- there may be in the court of appeals. I think the way that the Court would analyze that would be, again, along the same lines.

Now, certainly in jurisdictions that haven't adopted the rule that we're articulating here, the courts may suppress. But we think under the principles we're articulating, that suppression probably would not be appropriate there.

JUSTICE SOUTER: No, but apparently you're saying we would not suppress because as long as the warrant specified the items to be seized and they didn't go beyond that, there was no causal connection between the fact that they broke in and disturbed people in the night, when they were not authorized to, and their ultimate obtaining of -- of the evidence. Once again, it seems to me if we follow your -- your reasoning, then the distinction between the nighttime and the daytime warrant is a dead letter.

MR. SALMONS: Well, you know, we respectfully disagree with that. We think that there are two separate questions, what the Constitution requires and whether suppression is an appropriate remedy.

JUSTICE SOUTER: The Constitution requires --

MR. SALMONS: The Court has always treated those --

JUSTICE SOUTER: The Constitution requires a reasonable search. It is hornbook law that violating no-knock, violating nighttime searches when only a daytime search is authorized amounts to an unreasonable search. You're saying that's utterly irrelevant because there's no causal connection between that violation and the seizure of the particular items that the warrant -- the warrant specified.

MR. SALMONS: Your Honor, if I may. It's also hornbook law now in this Court that you can't unnecessarily destroy property in executing the warrant or effecting the entry and that you can't bring the media along. This Court in both Ramirez and --

JUSTICE KENNEDY: I'd to get your -- I'd like to get your position. I -- I think Justice Souter is correct, that under the theory you're arguing to us here, the violation of the daytime warrant rule is not grounds for suppressing evidence. So we can have nighttime searches with no suppression remedy.

MR. SALMONS: Well, I -- I think that's probably the position that we would take. I think the way the Court would analyze that, as it has done in these other cases, it would look to two factors. One, what are the purposes served by the Fourth Amendment rule that's violated and how well those purposes fit with the remedy of suppression; and two, whether the government obtained any evidentiary advantage as a result of the violation.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Salmons.

Mr. Moran, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF DAVID A. MORAN

ON BEHALF OF THE PETITIONER

MR. MORAN: Thank you --

CHIEF JUSTICE ROBERTS: You think there -- you think there was a violation of the knock and announce rule in this case. Correct?

MR. MORAN: I do, Your Honor. The warrant was never actually made part of the record, but my understanding, from the record we have, was that only drugs -- there was only knowledge of drugs. The -- the warrant authorized a search for guns because Officer Good told the magistrate that in his experience guns were often associated with drugs. But they had no particularized information about any guns on the premises. They only had particularized information about drugs on the premises.

The issue here about causation goes back, I think, to the common law. And as Justice Breyer articulated, when an officer is illegally in the home, that causes his seizure of goods or his arrest of people in the home to be illegal. If I can go all the way back to 1831, Chief Justice Shaw of the Massachusetts Supreme Court said, the rule is well established -- this is 1831 it was well established -- that where an authority given by law is exceeded, the party loses the benefit of his justification and the law holds him a trespasser ab initio although, to a certain extent, he followed the authority given. The law will operate to defeat all acts thus done under color of lawful authority when exceeded and a fortiori will it operate to prospectively to prevent the acquisition of any lawful right by the excess and abuse of an authority given for useful and beneficial purposes.

CHIEF JUSTICE ROBERTS: How do you draw a distinction between two cases? If they illegally entered and they suddenly said we waited 4 seconds, it was supposed to be 15. They say, never mind. They go back out. There's another knock. They wait 15 and they come in. Then it's all right. Correct?

MR. MORAN: It might be.

CHIEF JUSTICE ROBERTS: Okay. But you're saying it's a world of difference if, when they go in and enter and they say, we should have waited 10 more seconds, we're the police, we're here to execute a search warrant, let's count to 10, then all of a sudden, it's invalid from there on. Those are the -- they're two different cases in your mind?

MR. MORAN: I think that's -- that's right because an -- a reasonable search and seizure, as this Court held in Wilson, requires a lawful entry. Eight Justices agreed that an -- a lawful entry is the indispensable predicate of a reasonable search in Ker v. California. These are not disconnected. It is not in.

The -- the prosecution's claim here, the respondent's claim, would eliminate all manner of entry arguments from the exclusionary rule. Nighttime search, use of excessive force, blowing up the building to get in, knocking a wall off the building wouldn't matter. They were in -- they're in, they have a warrant, everything is fine once they're in. It simply wouldn't matter for exclusionary purposes.

In Harris, I want to stress again in Harris that this Court never questioned the fact that the evidence found inside the home had to be suppressed, and that's all we're asking for here. The evidence in the home.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

The case is submitted.

(Whereupon, at 11:00 a.m., the case in the above-entitled matter was submitted.)

Attribution:

The Oyez Project

Hudson v. Michigan - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Hudson v. Michigan

Media File:

04-1360_20060109-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of David A. Moran

Chief Justice Roberts: We'll hear argument in Hudson versus Michigan.

Mr. Moran.

Mr. Moran: Mr. Chief Justice, and may it please the Court--

Over the last 50 years, courts in virtually every American jurisdiction have suppressed evidence seized inside homes following knock and announce violations... including this Court, on two occasions.

Those suppression orders reflect an understanding of two points key to this appeal.

The first point is that the manner of entry... and, in particular, a knock and announce violation... is not somehow independent of the police activity that occurs inside the house.

And, as this Court directly recognized in Wilson, the reasonableness of police activity inside a home is dependent on the manner of the police entry.

Justice O'Connor: May I ask you whether there are statutes in various States that allow an officer to get a no knock warrant?

Mr. Moran: Yes, there are, Justice O'Connor.

Justice O'Connor: And does Michigan have such a statute?

Mr. Moran: I do not believe so, Justice O'Connor.

Justice O'Connor: How common are those statutes?

Mr. Moran: I believe about half the States have such no knock... no knock statutes.

So, in Michigan, a police officer... if the... if the circumstances on the scene justify a no knock entry, then the officer is permitted, by case law and, of course, by the precedents of this Court, to go ahead and do so.

Justice O'Connor: Why would an officer, without such permission, want to make a no knock entry while possessing a warrant--

Mr. Moran: Well--

Justice O'Connor: --a search warrant?

Mr. Moran: --as this case illustrates, sometimes officers believe that it is to their advantage to perform a no knock entry, or to fail to comply with the knock and announce requirement.

And that is why--

Justice O'Connor: Why?

Mr. Moran: --Well, Officer Good apparently thought that his safety would be better served he if disregarded the knock and announce requirement; and so, he candidly testified, at the evidentiary hearing, that it's essentially his policy, in drug cases, to go in without a... without performing the necessary knock and announce.

And that was 1 year after the... this Court's decision in Richards, saying that there is no per se exclusion of drug cases from the knock and announce requirement.

But that brings me to the second reason why courts have almost universally, until the Stevens case in 1999, held that suppression of evidence is necessary, and that is deterrence; because, without the suppression of evidence, there is very little chance that the officers will be deterred from routinely violating the knock and announce requirement, from adopting a sort of personal violation of the requirement, just as--

Justice Scalia: I don't know, I'd be worried... you know, bust in somebody's door... that the homeowner wouldn't shoot me.

Without announcing that I'm the police, he had every reason to believe he's under attack.

Isn't that a considerable deterrent?

Mr. Moran: --Yes, that's the one purpose of the knock and announce requirement that doesn't protect the homeowner's interest, that protects the officer's interest--

Justice Scalia: Exactly.

Mr. Moran: --against being shot.

Justice Scalia: Right.

Mr. Moran: However, what we'll see then, if there is no exclusion of evidence following knock and announce rules, are entries precisely like the one we have here, where the officers will, in fact, announce... they yell, "Police, search warrant"... but then they'll immediately go in.

Officer Good said that he went in real fast.

He went in, and it took him just a few seconds to get in the door.

So, that's what they'll do.

They'll announce... some officers will announce, because they'll want the--

Justice Scalia: Yes.

Mr. Moran: --people inside to know that they're police, but they will not wait for a refusal, and they certainly will not wait for a reasonable amount of time for some--

Justice Scalia: I'm not sure I agree with a point that you make in your brief that civil actions simply are of no use.

That might have been the case when we first adopted the exclusionary rule, but our docket is crowded with 1983 cases brought by prisoners, brought by convicted felons, and many of these cases are successful below.

What reason is there to believe that that wouldn't be an adequate deterrent?

Mr. Moran: --Simply, Justice Scalia, that, as far as we can determine, no one wins a knock and announce case, or we haven't been able to find a single case in which someone has actually recovered damages for a knock and announce violation.

So, if this--

Justice Ginsburg: Is that because the damages are slight or because there's a defense that is successful?

What has been the defense in these tort cases?

Mr. Moran: --Both, Justice Ginsburg.

First of all, in many cases, such as this one, where the police don't actually destroy the door, it would be very hard to quantify the damages, and it would be very hard to find a lawyer to take a case such as this.

But the second barrier is the various immunities, tort immunities.

In Section 1983 actions, there are qualified immunities that make it difficult to win a suit.

And because it is not a bright line as to when the police officers have to knock and announce, and when they do not... that is, Is there a reasonable suspicion that a quick entry or a no knock entry will be met with violence or that the evidence will be destroyed +/?

courts tend to be very generous in granting qualified immunity to officers... that is, concluding that some reasonable officers might have concluded that it was justified to dispense with the knock and announcement requirement.

Justice Scalia: Of course, that same problem exists if the consequence is exclusion of evidence.

Courts are going to view it the same way.

You're not going to avoid that problem by excluding evidence.

Mr. Moran: Well, there... but there is not a qualified immunity defense to the exclusionary rule.

Justice Scalia: Well--

Mr. Moran: And so, if the Court concluded--

Justice Scalia: --Well, I mean, your point is, it's very hard to tell whether they waited long enough, right?

And that's why they don't win a lot of these cases.

But the same thing is going to be true if the consequence of not waiting long enough is the exclusion of the evidence.

The court is going to be very... it's going to be very difficult to tell if they waited long enough, and, as you say, the court is likely to say, you know, "Let it go".

Mr. Moran: --That's true, to some extent, Justice Scalia, but, as an empirical matter, I've cited many cases, in my brief, over the last 50 years where courts from a vast majority of American jurisdictions have found knock and announce violations in criminal cases, and have, therefore, excluded the evidence, including this Court, on two occasions, 1958 and 1968.

So, courts do find knock and announce violations in criminal cases.

Justice Scalia: Our two cases did not... did not raise that issue.

The issue was not decided in those cases, was it?

Mr. Moran: The issue of a knock and announce--

Justice Scalia: Right.

Mr. Moran: --violation leading to exclusion of evidence--

Justice Scalia: Right.

Mr. Moran: --was decided.

The... there was not an inevitable discovery issue raised in those two cases, because those cases predated the inevitable discovery doctrine.

But, of course, in 1958 and 1968, this Court was very familiar with the independent source doctrine.

And, really, the argument that the Michigan Supreme Court has adopted... they call it an inevitable discovery argument; it's really an independent source doctrine.

Chief Justice Roberts: You don't... you don't dispute the application of the inevitable discovery principle here, do you?

Mr. Moran: Not at all, Justice... Mr. Chief Justice.

Chief Justice Roberts: Okay.

Mr. Moran: No, the--

Chief Justice Roberts: And you don't dispute that the purpose of the knock and announce rule is not to allow the targets of the search to dispose of evidence, or anything of that sort.

Mr. Moran: --Absolutely not.

The purpose of the knock and announce rule is to protect the homeowner's privacy rights.

It's one of the core parts of the right of the people to be secure in their homes against unreasonable police invasions.

Chief Justice Roberts: Well, but it's a limited privacy right, of course.

These people have a warrant, right?

Mr. Moran: That's correct.

Chief Justice Roberts: So, how would you describe the privacy interest that the knock and announce rule is protecting?

Mr. Moran: Well, I think this Court has described it well in the... in its most recent cases... in Banks and Richards, in particular, as well as Ramirez and Wilson... that it is a right against being terrified by having the police come in.

It is a right against being embarrassed.

People might be in all stages of undress or in compromising positions when the police come in.

And it is a right against having one's door destroyed.

The English cases, the early English cases, first recognized that it's a right against having one's--

Chief Justice Roberts: So, it doesn't go at all to the items that are the target of the warrant.

Mr. Moran: --No.

Chief Justice Roberts: And so, why should the remedy for the violation be to exclude those items?

The privacy that's protected isn't the cocaine, the weapons, the other items that were discovered.

Mr. Moran: Well, with respect, Mr. Chief Justice, I think you could say the same thing about the warrant requirement.

The purpose of the warrant requirement is also to protect the sanctity and the privacy of the home; it's not to protect contraband that one might have in the home, or whatever it is that the police are looking for.

It's--

Chief Justice Roberts: No, it's to protect privacy in the possessions and papers and effects.

And these are possessions, papers, and effects.

It goes right to what the police are trying to seize, and you have an independent magistrate make a determination that there's probable cause to believe it, et cetera, et cetera.

The knock and announce rule is an entirely... concerned with entirely different things.

And yet, you're enforcing it by excluding the papers, effects, and possessions.

Mr. Moran: --And I think the courts have recognized that it's necessary to enforce it that way, because other methods of enforcing it will not work.

But--

Justice Kennedy: Well, but just--

Mr. Moran: --I think it's--

Justice Kennedy: --just on the point of the causal relation that the Chief Justice was exploring, I mean, there is a causal relation in a but for sense.

We know that.

Mr. Moran: --Yes.

Justice Kennedy: I suppose the position of the Respondent is that the minute there's an entry after the knock violation... the no knock violation... the minute there's an entry, that injury ceases, so that it's different from a warrantless rummaging around through drawers and so forth.

I suppose that would be their argument.

Mr. Moran: I think that is their argument, Justice Kennedy, and I respectfully disagree with it.

As a historical matter, even the early English cases recognized that when an officer illegally entered... a sheriff illegally entered a home with a valid writ, that officer became a trespasser, and the activity that he performed in the home was, therefore, illegal.

In the reply brief, I cited several early American cases, from the 1830s and 1840s, holding that when an officer had a valid writ to seize a debtor's goods, but illegally entered the home, then that writ became no good; and, therefore, the officer... the sheriff, in those cases... could be sued, not only for the illegal entry, but also for the seizure of the goods that he had a valid warrant, or a valid writ, to seize, and that that--

Justice Scalia: Yes, but here it was a warrant to enter the home, not to seize particular goods.

So, the entry of the home was not illegal.

The entering of the home was perfectly okay.

What was illegal was not knocking and announcing in advance.

It seems to me that's quite a different... quite a different issue, and the causality is quite different.

Mr. Moran: --Well, Justice Scalia, I respectfully disagree that the entry was not illegal.

I believe the entry was illegal, because what a warrant authorizes an... a... an officer to do is to make a legal entry.

It does not allow the officer to enter however he pleases; it allows the officer to make an entry that complies with the law... in particular, the fourth amendment.

And so, the entry was illegal.

They could have performed a legal entry.

Justice Scalia: I understand that, but the essence of the violation was not the entering; whereas, in the cases, the old common law cases you're talking about, the essence of the violation was the entering.

Here, the entering was perfectly okay; it was the manner of it, the failure to give the advance notice, that made it bad.

And that, it seems to me, creates a different situation.

Mr. Moran: I think, starting in Semayne's case, the Court recognized that even if the officer would have a right to knock down the door after a refusal of entry was obtained, that if the officer did not wait for that refusal, then the entry was illegal.

And so, I think the common law cases do support... the old English common law cases, starting with Semayne's case... do support the notion that the entry... the entry does become illegal if the officer does not wait for the refusal.

And in this case, of course, the officer did not wait at all for any refusal, candidly admitted that he went in as soon as he could get through the door, as quickly as he could.

Justice Ginsburg: Mr. Moran, would you clarify an answer you gave to Justice O'Connor at the outset of the argument?

You said there is no statutory right to get a no knock warrant.

But did you say, as a matter of case law and practice, that can be done in Michigan?

Mr. Moran: I don't believe so.

I don't believe that Michigan still allows for no knock warrants.

But officers, of course, can perform no knock entries when arriving at the scene, the circumstances justify a no knock entry.

Chief Justice Roberts: You mean, if you had a case where the reason you were arresting the guy is because he's shot through the door the last three times somebody knocked and announced, you still have to knock and announce, under Michigan law?

Mr. Moran: No, I don't think so, Mr. Chief Justice.

I think, in that case, that would satisfy the Richards standard.

In that case, the officer would have particularized suspicions amounting--

Chief Justice Roberts: But he couldn't get a warrant saying that.

Mr. Moran: --I don't believe Michigan has a procedure for granting no knock warrants, not--

Justice Breyer: But that's... that's actually what's disturbing me about this, because I thought the knock and announce rule was a rule that would allow a policeman to go in without knocking and announcing when he has reasonable grounds for thinking he might get shot if he didn't.

So, I... as I read the briefs, I thought maybe that's not how it's being implemented, that the policemen are supposed to run the risk of being shot.

I didn't think that was the situation.

So, I'd appreciate your explaining that to me.

Mr. Moran: --Well, in Richards, this Court said that if there are particular facts about this particular entry that would make an officer have reasonable suspicions that he is going to be shot at or the evidence is going to be destroyed, then the officer may dispense with the knock and announce requirement.

There were no such suspicions in this case, and that's why the prosecution conceded, at the outset and at every step since, that it was a knock and announce violation.

The officers had no information about this particular--

Justice Breyer: Would it be sufficient if the officer says,

"One, this is a drug gang; two, they don't let people into the house whom they don't know; and, three, they have guns? "

Mr. Moran: --That might be sufficient, after Richards, but that's not the facts of this case.

We have none of those facts in this case.

They were serving a warrant, and they had no information that they were going to be in particular danger.

They had no information, for example, that there were drugs, stored near the toilet, that were going to be flushed down.

Justice Stevens: Let me just be sure I understand the hypothetical case, where, three times before, there had been warrants served, and, each time, the homeowner shot at the officer, the fourth time, they could go in without waiting.

Mr. Moran: I think that would be an easy case, Justice Stevens.

Justice Stevens: You think it would, okay.

Mr. Moran: Because then you would have particular facts about this particular residence and the people involved.

I think that would be a very easy case for a no knock entry.

We--

Chief Justice Roberts: But you can't get a warrant that says he can do that.

Mr. Moran: --I don't believe Michigan has that procedure.

Perhaps Mr. Baughman can correct me.

He's a... he's with the prosecuting attorney's office.

But I don't believe Michigan has that procedure.

Not all States do have that procedure.

And, instead, States that don't have that procedure simply leave it to the officer to determine if there are those facts that justify a no knock entry.

So, there are many entries in Michigan, that occur all the time, that do not comply with the knock and announce requirement.

And that's fine, because the officer does, in fact, have the particularized facts justifying a no knock entry.

Justice Kennedy: We've been down this route before in other cases, like Wilson, but it's still a troublesome measure.

It's hard for me to believe that if a person has drugs in the pockets of his trousers or on the... next to the chair where he's sitting, that he wouldn't immediately run and try to dispose them.

I just think that it's ordinary behavior.

And, if that's so, then it would follow that you never have to knock if you're looking for drugs that might be on the person.

Do you have any comment as to that?

Mr. Moran: Well, then that would... this Court, I think, would have to reverse Richards, because Richards said that the fact that it's a felony drug investigation does not justify a blanket exclusion from the knock and announce requirement.

And this Court unanimously held, in Richards, that the knock and announce requirement applies in felony drug cases--

Justice Kennedy: But--

Mr. Moran: --unless--

Justice Kennedy: --But if we say that a likelihood... or that the... or substantial probability that the evidence will be destroyed allows the no knock, why won't that be true in every drug case, other than for what we said in Richards?

Mr. Moran: --Well, because in Richards--

Justice Kennedy: I mean, do people say,

"Oh, they've got me now. "

"I won't get rid of the drugs? "

Mr. Moran: --Well, first of all, Justice Kennedy, I think the law presumes that homeowners will either make an explicit refusal, "No", or will answer the door; and primarily that they'll do the latter.

The presumption of the homeowner that we're talking about is an innocent homeowner, somebody who is either... has nothing to do with whatever the police are looking for.

There are many cases where the police are looking for goods that are not connected to the people who are home.

Justice Kennedy: Well, when there's probable cause to enter, there's no presumption of innocence, is there, or am I wrong?

Mr. Moran: Well, it... with... probable cause is a standard at somewhere around 50 percent, and a very large number of warrants are executed on the homes of people who have nothing, or people who... there is something that the police are looking for, but they don't have anything to do with it; they're third party homeowners.

And, for that reason, the knock and announce requirement recognizes that many, many warrants... many, many searches... will be executed on the homes of perfectly upstanding, innocent people.

And--

Chief Justice Roberts: Do you have... do you have any empirical basis for your statement that many warrants are executed and they don't find anything?

Mr. Moran: --Well, I don't have any statistics.

I'm sure the FBI keeps statistics on at least Federal warrants.

But it's true that in a large number of warrants, the police don't find what they're looking for, because probable cause is a standard that is not particularly high.

Chief Justice Roberts: Do you have any basis for your statement that, in a large number, they don't find what they're... anything that they're looking for?

Mr. Moran: I don't have any empirical evidence, but certainly lots and lots of anecdotal evidence, from reading newspaper accounts of police--

Justice Stevens: And you--

Mr. Moran: --searches.

Justice Stevens: --you don't dispute the fact that presumption of innocence... the presumption of innocence survives an indictment, doesn't it?

Mr. Moran: It does, and I think it--

Justice Stevens: Yes.

Mr. Moran: --survives the search warrant.

Justice Stevens: So probable cause is not enough to eliminate the presumption of innocence.

Mr. Moran: I certainly would argue that--

Justice Stevens: Yes.

Mr. Moran: --Justice Stevens, that probable cause it not a very high standard.

And in... many search warrants are, in fact, served on the homes of people who are not suspected, because they're thought to be the place where stuff was stored, but not be the people who are suspected of doing anything wrong in the first place.

Justice Ginsburg: In--

Justice Scalia: Mr. Moran, these old common law cases you referred to, which held that a failure to knock and announce renders the entry unlawful, what was the consequence, in those cases?

Mr. Moran: Those were cases in which, typically, the sheriff was sued for trespassing.

Justice Scalia: Right.

And the evidence would... if found, was not excluded, right?

Mr. Moran: No.

There was--

Justice Scalia: So, if we wanted to be faithful to those common law cases, we wouldn't exclude the evidence.

Mr. Moran: --I think things have changed, Justice Scalia, since those common law days, for that reason.

Justice Scalia: Well, then you shouldn't have cited the common law case.

[Laughter]

Mr. Moran: Well, Justice Stevens... I mean, excuse me, Justice Scalia, things have changed, in the sense, first of all, that in those days there was a common law writ of trespass.

If one were to file, in Michigan, a complaint for trespass against the sheriff, one would be laughed out of court today, because all that you have is a tort suit, which you have to show an extreme violation... I cited the Michigan statute that requires extreme recklessness on the part of the police officer.

The second point is that in those days the sheriffs were... there were adequate means to control the behavior of sheriffs, because they were seen as arms of the judiciary.

That, of course, was before the rise of the independent police forces that we have today.

And so, the exclusionary rule, of course, was adopted in the late 1800s, early 1900s... in part, in response to the changing circumstances of the police.

The police were no longer under the direct control of the judiciary; and so, different remedies were necessary in order to assure compliance with constitutional rights.

Justice Ginsburg: --In the courts that have allowed this action to go forward, has the rationale been that there is no other effective deterrent to ignoring or violating the knock and announce rule?

Mr. Moran: Yes, Justice Ginsburg.

At last count now, 11 State and Federal appellate courts have directly rejected the Michigan Supreme Court's reasoning.

The Idaho Court of Appeals just joined the list 2 weeks ago, in a... in a case that I... is not cited, because it's so recent.

And they have uniformly... I believe all 11 of those cases have said that,

"Were we to hold otherwise, the knock and announce rule would become meaningless. "

a worry that this Court expressed in Richards.

This Court was very concerned, in Richards, that simply excluding drug cases from the knock and announce rule would make the knock and announce rule meaningless.

And these courts have noted that statement... the courts that came out... this... the decisions that came out after Richards, and have said,

"If that is meaningless, then it would be especially meaningless if we were to exclude the entire knock and announce rule from the exclusionary rule, that there would be virtually no reason for police officers ever to comply with a knock and announce requirement. "

And so, I think the deterrence rationale is a large part of this, and that's what distinguishes this case from the inevitable discovery cases, which the Michigan Supreme Court relied on.

Justice Scalia: Well, I suppose there are a lot of other violations of constitutional rights by the police that are very hard to get at, and that cannot be remedied.

And I suppose we could punish them by excluding all the evidence, as well.

We don't do so, simply because there's no causality.

We insist upon a causal connection between the two.

It's not enough just to say the... this is the only way to stop the police from making the violation.

Mr. Moran: No, it is not enough, but what is critical in this case is that the knock and announce violation goes to the manner of entry, and the Court has long recognized that the two predicates for seizure of goods inside a home, or arrest inside a home, are authority to enter the home, which is not contested here, and a lawful entry.

And if either one of those two predicates is missing, then you have grounds to suppress the evidence; that is, the evidence inside the home is in the fruit of the unlawful entry.

Justice Scalia: What about our opinion in Ramirez, where the manner of entry was such that there was damage to property?

Mr. Moran: I--

Justice Scalia: We didn't exclude the evidence there, did we?

Mr. Moran: --No.

First of all, this Court didn't find that there was a violation in the... in the damage in property; this Court found no... did not find, as a matter of law, any fourth amendment violation.

But I read the Ramirez... that language from Ramirez as saying that as long as the entry remains lawful... and, in Ramirez, the entry was lawful, because there were valid grounds to dispense with the knock and announce requirement.

You had a known dangerous fugitive, who had bragged that he wouldn't be taken alive.

And so, there was every reason for the officers to dispense with the knock and announce requirement.

Therefore, the entry was legal.

They had both authority... that is, the warrant... and they had a valid entry... that is, a no knock entry that was justified by reasonable suspicion that the officers would be met with violence if they did knock and announce their presence.

And so, we... in Ramirez, we have a lawful entry.

The language that's quoted from Ramirez directly says, "the entry remains lawful", or words to that effect.

And you have a different case if you had--

Justice Scalia: Well, what had happened?

Had they broken a window on the way in?

Is that--

Mr. Moran: --That's correct.

Justice Scalia: --Well, the entry remains lawful, despite the fact that the manner of the entry, which included the breaking of a window, was unlawful.

I think what the Court meant was not, as you're portraying it, that, objectively, the entry was lawful.

I think they were speaking as a matter of law, despite the fact that the breaking of the window was wrong, the entry was lawful.

Just as your opponent is saying here despite the fact that there was no knock and announce, the entry was lawful.

Mr. Moran: Justice Scalia, I don't see any language in Ramirez saying that the breaking of the window was unlawful.

I think the breaking of the window... I read the Ramirez opinion as saying the breaking--

Justice Stevens: But even if it was unlawful, it was not unconstitutional.

Mr. Moran: --It wasn't... certainly wasn't unconstitutional.

Often, when the police perform a valid no knock entry, they will damage property.

Typically, they will destroy the door.

And so, the breaking of the window in Ramirez, I don't believe was unlawful.

I believe it was perfectly valid way for the officer to perform the entry; that is, to put the gun through the window in the garage area in order to prevent... they believed that the homeowner had guns there and was going to use the... run to the guns in order to repel the entry.

And so, I believe it was a perfectly lawful entry.

I think what Ramirez was saying was that not all fourth amendment violations bear fruit.

And I agree with that.

We do not have... we do not propound here a theory of everything, having to do with all fourth amendment violations and the fruit that they propound.

We simply say that, with a knock and announce violation that makes the entry unlawful, the evidence found inside the home, and only inside the home, is the fruit of that violation, unless there truly is an inevitable discovery or independent source argument; that is, something independent of the entry, which can't be done here, when the police simply barge in and, in a matter of seconds, perhaps minutes, find the evidence.

So, the--

Justice O'Connor: Mr. Moran, is it undisputed by you that the client would not have disposed of the drugs if the police had waited a few seconds?

Mr. Moran: --Yes, we presume that he would have come to the door.

He was just a few feet from the door, in fact.

He was right in front of the door.

We presume that he would have come to the door, answered the door, admitted the police, and the police would... then would have performed the search.

If the Court has no further questions, I'd like to reserve the balance of my time.

Chief Justice Roberts: Thank you, Mr. Moran.

Mr. Moran: Thank you, Mr. Chief Justice.

Argument of Timothy A. Baughman

Chief Justice Roberts: Mr. Baughman.

Mr. Baughman: Mr. Chief Justice, and may it please the Court--

The metaphor of "fruit of the poisonous tree" is frequently employed when the exclusionary rule is discussed.

And that metaphor is apt.

It is apt, because the sanction of exclusion, which is not, itself, constitutionally required, is designed to deter, and to deter in a specific way to deter by depriving the police of the result... the fruit, the product, the evidentiary advantage that has been gained by their improper conduct.

And so--

Justice O'Connor: Would you agree there is a knock and announce requirement--

Mr. Baughman: --Yes.

Justice O'Connor: --even though there is a warrant?

Mr. Baughman: Yes.

Justice O'Connor: And do you agree that that was violated here, that there wasn't really a knock and announce here?

Mr. Baughman: Yes, there was a... an announcement, but a failure to wait.

There's not... the announcement principles require--

Justice O'Connor: All right.

Mr. Baughman: --not only an--

Justice O'Connor: Now, is exclusion of evidence in these circumstances a deterrent, so that the police would be less likely to do that?

Mr. Baughman: --It may be.

Justice O'Connor: Yes.

Mr. Baughman: But I believe that, before the question of deterrence is reached, the question of causality must be addressed.

This Court has always said that causation is a necessary, though not always sufficient, predicate, for a application of the exclusionary rule.

The way this Court has put it is that it is clear that implementation of the exclusionary rule in particular cases begins with the premise that the challenged evidence is, in some sense, the product of the improper police activity.

So, I believe--

Justice Souter: Well, isn't it--

Mr. Baughman: --the question--

Justice Souter: --the product, here?

I mean, if they had not... if they had not entered, they would not have gotten their evidence.

Their entry, because it violated knock and announce, was unlawful.

So, it is a product, isn't it?

Mr. Baughman: --I think... I think where I would disagree, Your Honor, is that the entry is lawful... in fact, it's not simply authorized, it's commanded by judicial order.

The use of force--

Justice Souter: Well, an entry that conformed with knock and announce would have been lawful.

This entry didn't.

This entry was unreasonable.

So, I don't see how your argument fits the facts.

Mr. Baughman: --The way I distinguish it, and what I... where I believe the distinction lies is that what was improper was not the fact of entry; what was improper was the use of force in entry.

The--

Justice Souter: Well, but--

Mr. Baughman: --knock and announce--

Justice Souter: --I mean, how do you make that distinction?

I mean, it's like the... you know, the Cheshire cat and a... and the smile; you can't distinguish the two.

There was one entry, and that entry violated the knock and announce rule.

Mr. Baughman: --Well, again, the use of force in making the entry violated the knock and announce rule.

The entry itself was commanded by the order of the court.

Justice Breyer: Well, how is that different from saying the entry is lawful, its only problem is, it was done without a warrant?

I mean, you know, he's--

Mr. Baughman: Because if they're--

Justice Breyer: --inside the building; just, unfortunately, the means wasn't right.

No warrant.

Mr. Baughman: --No, if--

Justice Breyer: The means wasn't right.

No knock and announce.

Mr. Baughman: --If there is no warrant, there is no judicial command to enter, so the entry is completely unjustified.

Here, we have not set the appropriate--

Justice Stevens: Well, but you might have probable cause, but just not have the... have the warrant.

So, what is the difference between having probable cause to enter, but failing to get a warrant, and having a warrant, but failing to knock and announce?

Mr. Baughman: --Because the fourth amendment commands that the police not enter without judicial authorization.

The police don't get to make the probable cause decision in advance.

And we wish to have a judge make that decision, so we won't, in hindsight, say,

"Had you gone to the judge, the judge would have found probable cause, so we'll ratify what you did after the fact. "

The entry itself... not just the manner of entry... the entry is invalid, unless the judge authorizes it, or unless some exception exists.

Justice Stevens: Is it your view the entry was lawful or unlawful, in this case?

Mr. Baughman: The fact of entry was lawful.

Justice Stevens: No.

Justice Breyer: So, in fact--

Justice Stevens: No--

Justice Breyer: --if they had a bazooka--

Justice Stevens: --that's not the question.

The actually... actual entry was lawful, yes?

Mr. Baughman: The entry was lawful.

Justice Stevens: Oh, okay.

Justice Breyer: --And the same would be true if what they had was a bazooka, and blew the house up.

[Laughter]

Mr. Baughman: Yes.

Justice Breyer: Yes, okay.

Mr. Baughman: Yes.

The entry would be lawful.

The manner of entry would be unlawful.

And the consequence of that entry would turn on what force was used.

As, in this case, they opened the door and walked in.

There was no... there was no injury to person, there was no injury to property.

Justice Souter: So, basically, your argument rests on the fact that we can draw a distinction between entry and manner of entry.

Mr. Baughman: Yes.

My principle that I am advocating is that any police error in the execution of a search, or in the accomplishment of a search, bears fruit only in relation to the purpose, or purposes, served by the principle violated.

One--

Chief Justice Roberts: It's a--

Mr. Baughman: --has to ask--

Chief Justice Roberts: --It's a... it's a strong argument, on the other side, that if we adopt your position, the officers would have no incentive, other than their own judgment about their personal safety, whether to comply with the knock and announce rule.

Mr. Baughman: --That is if one assumes that the civil remedy... that the 1983 actions has no teeth and has no force, and I don't believe that's true at all.

Justice Ginsburg: What is the experience in Michigan?

The Michigan Supreme Court has had this rule for some time, that you don't exclude the evidence.

Mr. Baughman: Uh huh.

Justice Ginsburg: How many successful 1983 actions have there been--

Mr. Baughman: I am not... I am not aware of any.

On the other hand, like Mr. Moran, I... other than anecdotal evidence, I have no statistical evidence that the police are violating the knock and announce principle since the decision in Stevens.

Justice Ginsburg: --But you have not even one case that you can cite where a 1983 remedy was resorted to and was successful.

Mr. Baughman: In Michigan, I don't.

There are cases cited in our brief where, in fact, there are actions... such actions brought.

There are several recent decisions in the Seventh Circuit, for example, where qualified immunity was denied on a knock and announce violation in the cases in the District Court for trial or settlement.

And there may be many cases that don't make the reports, what actions are brought and settled.

Justice Ginsburg: But you're not aware of any case--

Mr. Baughman: I am not aware of any case--

Justice Ginsburg: --where anyone has recovered--

Mr. Baughman: --And, again, I think Mr. Moran correctly points out, in... many of these cases are resolved by finding that the Richards v. Wisconsin exceptions have been met.

It is not, to me, remarkable that there are not a lot of civil actions.

I believe there are not a lot of violations, because, while no knock entries may occur, they are justified, under Richards v. Wisconsin, in most cases.

This case is an aberration.

Justice Ginsburg: --On the no knock warrant, do you agree that it's not possible to get one in Michigan?

Mr. Baughman: Yes, there is no statute in Michigan where one can go to the judge in advance and say,

"Here are the facts, known to me already, before I even get to the scene, that should justify a no knock. "

That doesn't exist in Michigan.

Michigan follows Richards v. Wisconsin, and, in... had case law, even in advance of that, which simply said,

"Whether known in advance, or whether the facts occurred at the time of the execution of the warrant, if the Richards exceptions are met, you can go in without knocking and announcing. "

So, we do follow that rule.

You just simply can't get advance judicial authorization.

It doesn't exist.

But it is certainly permissible, and it... as Mr. Moran indicated, it happens on a fairly regular basis, because, unlike Mr. Moran, I believe the notion that... even in this case, I'm not saying there was no violation; there was a violation, because the police didn't know in advance that the defendant was sitting in a chair with the cocaine in his pocket, on the chair in front of him, and a gun by his side.

I think that he would have answered the door.

It's highly speculative, and somewhat fanciful, in that circumstance.

Chief Justice Roberts: Do they get to make... do they get to make "inevitable" arguments on their side?

I mean, let's say, as what happened here, or as seemingly happened, the fellow is found near the chair with the drugs.

Can't they argue,

"Well, if you had knocked and you had waited 10 seconds, he would have gotten up from the chair and gone somewhere else? "

And you wouldn't have been able to argue, at trial,

"He was sitting in the chair with the drugs. "

Mr. Baughman: That's true, but the drugs were... in this case, the drugs were in his pocket.

So, it wouldn't have helped him.

Chief Justice Roberts: There was something in the chair, right?

I mean, the--

Mr. Baughman: There was--

Chief Justice Roberts: --the gun, or what--

Mr. Baughman: --The gun was in the... in the chair, but he was only convicted for the drugs in his pocket.

Chief Justice Roberts: --Hmm.

Mr. Baughman: I don't think he... he could say,

"If you would have... I would have gotten up and answered the door; and, therefore, you wouldn't have had to come in without knocking, you wouldn't have had to break the door, you wouldn't have had to scare me. "

Chief Justice Roberts: You wouldn't have been able to tell the jury,

"I was standing next to the chair, because if I had... I obviously would have gotten away from the chair, because I knew that's where the gun was. "

Mr. Baughman: That's... that may well be.

And I want to be clear, I am not here arguing that this Court should decide that there is no circumstance possible where something that occurs in the premises is not causally connected to the failure to knock and announce.

All I'm asking the Court to decide is that causation is required before the exclusionary rule is implemented, and physical evidence found within a proper search of... search of proper scope, pursuant to the warrant, that that is not causally connected to the... to the knock and announce violation.

There may be other--

Justice Scalia: So, you... so, you think it's possible that the defendant could argue that the evidence should be excluded because,

"Had he knocked and announced, I would have run to the toilet and flushed it down, rather than-- "

Mr. Baughman: --No.

Justice Scalia: --"# answering the"--

Mr. Baughman: No, I--

Justice Scalia: --Well, why not?

Mr. Baughman: --I think the only thing he could--

Justice Scalia: That's causal.

Mr. Baughman: --But I think you have to tie the causal connection to the purposes... as I have tried to indicated... to the purpose, or purposes, served by the principle violated.

What is the purpose of knocking and announcing?

And I think... Your Honor indicated... it's to protect against injury to the police, injury of people inside, and property.

It has no purpose to protect against the invasion of the privacy of the dwelling and the discovery of the evidence.

In fact, if the police knew in advance that the defendant might flush the drugs down the toilet, they wouldn't have to knock and announce at all.

So, I think we have to relate the causal question to, What is the principle violated?

What purposes does it serve?

And, in the case of knock and announce, it does not serve the purpose of allowing evidence to be destroyed.

That, in fact, serves as an exception to knocking and announcing at all.

Justice Souter: What do you say the purpose of knock and announce is?

Mr. Baughman: This Court has identified it on several occasions as to avoid unnecessary violence to the property, avoid unnecessary possible injury to people, both to the officers who are executing the warrant and people inside, and to allow the person inside to prepare to answer... as Mr. Moran indicated, if they might be in a state of undress or something, they could avoid that embarrassment.

Justice Souter: So, I take it your argument is that, except in cases in which the people inside the house are not dressed, or cases in which there is, in fact, a gun battle of some sort, that a knock and announce violation will, in fact, never be the cause of any damage at all.

Mr. Baughman: It will never be the cause of the discovery of the physical evidence found--

Justice Souter: No, no, it... no, but it'll never be the cause of any compensable damage at all.

Mr. Baughman: --Well, if a--

Justice Souter: Because I take it your argument is what you can recover from requires causation.

And what I mean by "causation" is the causation of the harms which the rule is intended to avoid.

Mr. Baughman: --Correct.

Justice Souter: And if the only harms that the rule is intended to avoid is the exposure of nakedness and violence, once inside, and there are cases without nakedness or without violence, then, in those cases, there will never be a recovery.

Mr. Baughman: Oh, in those cases, correct.

In cases where there is violence, there will be recovery.

In a case such as the instant one, where there is no nakedness, there is no violence, they simply opened an unlocked door, I would say, yes, there would be no recovery, in that circumstance; there would be no damages.

There may be cases... and this is why not... I'm not arguing there was no knock and announce violation, in that the police shouldn't knock and announce, because, in different cases, the consequences may be dramatic, they may be severe, and damages may be severely assessed.

Justice Souter: But, basically, your rule is, the police are entitled to take the chance.

If they... if they get inside, and people have got their clothes on and there's no gun battle, no problem; nothing that the police are exposed to, either by an exclusionary rule or by a civil recovery.

And if they want to take that chance, if they want to take the chance that somebody will not be dressed or a gun will be pulled, basically that's their option.

Mr. Baughman: I think, as in other situations where this Court does not apply the exclusionary rule, simply on a deterrence basis... because the Court does not always apply the exclusionary rule, even when there would be deterrence... that that is correct.

Chief Justice Roberts: Well, that's not true.

I mean, there are going to be situations, or at least possible, where evidence is going to be a... causally connected to a violation of the knock and announce rule, right?

The situation... the warrant is because these people were involved in a shootout with the... you know, the Johnson gang; they knock the door down and somebody yells,

"Look out, it's the Johnson gang. "

Mr. Baughman: Yes.

Chief Justice Roberts: And if they had knocked and announced, and "It's the police", they wouldn't have that statement that's incriminating.

Now, you would agree that that statement would be excluded because of the violation, right?

Mr. Baughman: Yes, exactly.

That was precisely the point I was going to make, in terms of a hypothetical.

We're not arguing... as I tried to indicate earlier, we're not arguing that you need to resolve every question today about what is, or is not, causally related.

And there are circumstances where a spontaneous declaration... you know, the police break through the door, and the defendant says,

"The drugs are in the closet. "

and you want to use that declaration to tie him to the drugs... that may well be causally connected.

All we're asking today is for this Court to decide that the items... the physical evidence found within a proper scope, a search of proper scope of the warrant that's being executed... is not causally connected.

Other questions of spontaneous declarations, tying the defendant by position to the chair, those may present different issues.

But the drugs that were named in the search warrant as items to be searched for and seized are not causally connected; they are the fruit of the execution of the judicial command, not of the knock and announce violation.

Justice Stevens: I can understand the requirement there be causal connection.

Are there cases in which courts have held that there was a knock and announce violation, and there is a general remedy of exclusion, unless... except when there's a causal connection; but, in fact, the evidence was admitted because it was not causally connected to the entry?

Mr. Baughman: I'm not away of any.

Justice Stevens: I mean, I can understand the hypothetical, but it seems to me it's really a hypothetical.

Mr. Baughman: Yeah.

And I think the reason that that exists is because, up til today... and Mr. Moran's correct, most courts go the other way... up until the Stevens case, the assumption had been... and I think the assumption has come from Miller and Sabbath... the assumption has been, if there's a knock and announce violation, you exclude the evidence.

So, questions of causation have not been explored until the Stevens case, and then the Seventh Circuit, in several opinions, has also reached the same conclusion.

But I think Sabbath and Miller present very different circumstances.

Sabbath and Miller, as the Court will recall, were arrest cases.

And the arrest situation does not translate into the execution of a search warrant, because knock and announce serves a different purpose, an additional purpose, in the arrest situation, that is not served when... in the search situation.

Justice Breyer: Oh, I see your argument now.

I think your argument is, most of the fourth amendment rules are really designed to prevent warrantless entries.

But this one isn't.

Mr. Baughman: That's correct.

Justice Breyer: This one is designed to prevent damage to property--

Mr. Baughman: That's correct.

Justice Breyer: --et cetera.

So, let's not have the exclusionary rule and rely on the damage remedy where that kind of thing actually occurs, which isn't often.

Mr. Baughman: That's correct.

Justice Breyer: And if we buy that principle, suppose we were to apply it in the Miranda area... purpose of a Miranda warning is really to make certain he can have a lawyer, if he wants one, for example.

So, now we prove this guy wouldn't have asked for a lawyer anyway.

All the evidence comes in.

I mean, it's an interesting principle.

I see the logic.

But it seems to me to have a lot of implications that this Court has never bought.

Mr. Baughman: I think it's much more speculative in the... in the fifth amendment area, but I think--

Justice Breyer: I can't think of any other area, fifth or fourth, where we've bought it.

And I've tried to explain, in the question, why we haven't bought it.

Now, you go ahead.

Mr. Baughman: --But I think to not accept causation as a requirement, which I think this Court has always done... as I said at the outset, this Court has said that implementation of the exclusionary rule is premised on the evidence being the product of the police misconduct.

To not do that, to not have a causation requirement, I believe, severs this Court's current exclusionary rule doctrines from its moorings.

There are many circumstances that this Court has, at this point, at least, seen fit to rest with the lower courts, such as the execution of a search warrant.

You search within proper scope, you're looking for computer monitors, you find them, but, as you're executing, you open a desk drawer and you shut it, you exceed the scope of the warrant.

The law is pretty uniform, currently, that you don't suppress the computer monitors because you exceeded the scope by opening the drawer.

If you found drugs in the drawer, you make... you'd exclude those.

But you don't exclude the monitors, because there's not a causal connection between the wrong in exceeding the scope of the warrant and the discovery of the monitors.

All those cases are up for grabs again if this Court severs the causation requirement from the application of the exclusionary rule.

And that's just one example; there are others.

This Court has always required that there be a causal connection, and I believe that it should simply continue to do so.

We're not asking this Court to overrule any cases, to create any really new principles, we're simply asking this Court to understand that Sabbath and Miller were knock and announce for arrests.

With an arrest situation, if a person surrenders at the door, you don't go in and search the premises thoroughly.

There's a different purpose served in arrest.

With a search warrant, knock and announce has no purpose of protecting the privacy of the dwelling itself with the discovery of the items named in the warrant, and they shouldn't be suppressed.

Things that are causally connected can be left to an argument that may be made by counsel in different situations, but, as to the items named in the warrant... contraband, fruit, spirits, instrumentalities... that should not be suppressed.

It is simply not causally connected to the entry, and we would ask this Court to so hold.

Thank you.

Argument of David B. Salmons

Chief Justice Roberts: Thank you, Counsel.

Mr. Salmons.

Mr. Salmons: Thank you, Mr. Chief Justice, and may it please the Court--

The knock and announce rule, unlike the warrant and probable cause requirements, does not protect the individual's privacy interest in the items to be searched, and does not relate to the officer's authority to conduct the search and obtain the evidence.

An unannounced or premature entry, therefore, does not detract from the officer's legal authority reflected in the warrant to enter and conduct a search.

Instead, as this Court held in Segura, an untainted warrant provides an independent source for the search, even where the entry is illegal.

There was only one entry in the Segura case, since the officers remained in the apartment until a warrant was finally obtained.

Justice Breyer: It depends, of course, on whether you... what you're doing.

Now I see what you're doing.

You're applying a kind of Palsgraf causation analysis within the risk... I think that's what you're doing... to saying it's outside, it's not a cause.

You're saying... you don't say it's not a necessary condition of his being there.

It is.

You do say,

"Well, the being in the room there is not within the risk, the reason for which we have a knock and announce rule. "

But, of course, that's a matter of judgment.

I mean, you could say the purpose of the cause... of the knock and announce rule is to keep people out of there without knocking and announcing.

And if that's the purpose of it, it's right within the risk, right cause.

Mr. Salmons: Your Honor--

Justice Breyer: You just are looking at the harms that his being there in that room without announcing might bring about.

That doesn't mean that's why we don't have the rule.

We have the rule to keep him out of there without announcing.

Mr. Salmons: --Your Honor, there are... there are several reasons why the Court has... the Court has articulated several reasons for why there is the knock and announce rule.

We think the important point, though, with regard to the Segura case is that the entry, in Segura, was unlawful both because the officers did not announce and because they did not have a warrant.

They, nonetheless, stayed there for 20 hours, and, when they finally did obtain a warrant, they conducted the search.

And this Court had no difficulty in saying that, even though the initial entry was unlawful, the warrant authorized search... the warrant was an independent source for the search, and that the legality with regard to the initial entry was, quote,

"wholly irrelevant to the evidence that was obtained pursuant to the warrant. "

And we would submit that it would be an odd fourth amendment rule that would allow admission of the evidence where the officers failed to obtain a warrant.

They entered without a warrant and without announcement, and only later obtained one, as in Segura; and then suppress all evidence, in this case, where the officers did obtain a warrant in advance, and their only illegality was the much more minor one of entering a few moments prematurely.

Justice Souter: What was the--

Mr. Salmons: Nothing in this Court's cases--

Justice Souter: --I'm sorry, I didn't mean to interrupt.

Mr. Salmons: --No, that's fine, Your Honor.

Justice Souter: I was going to say, What was... what were the grounds upon which the warrant, in Segura, was obtained?

Mr. Salmons: The warrant, in Segura, was obtained by... based on evidence that was in existence prior to the unlawful entry, so that it was an untainted warrant.

Justice Souter: So, it didn't... it didn't depend on the entry or anything gained as a result of the entry, right?

Mr. Salmons: Well, of course, the officers... once that warrant was obtained, officers would have to enter the apartment in order to conduct a search--

Justice Souter: Right, but the--

Mr. Salmons: --here, except for the fact that--

Justice Souter: --but the--

Mr. Salmons: --they had already entered illegally and were already present illegally--

Justice Souter: --Right, but the warrant--

Mr. Salmons: --in the apartment.

Justice Souter: --the warrant... the warrant itself didn't depend on anything they had gained as a result of the entry.

There was no--

Mr. Salmons: That's correct--

Justice Souter: --kind of causal--

Mr. Salmons: --in Segura.

Justice Souter: --continuum there.

Mr. Salmons: That's absolutely correct, and that's--

Justice Breyer: So, you do--

Justice Souter: Isn't--

Mr. Salmons: --a requirement for--

Justice Souter: --Isn't that the difference, though, with this case?

Because, here, there is a causal continuum, at least, as Justice Breyer said, a but for causal continuum.

They wouldn't have been in the apartment but for the entry.

And so, the authority of the warrant and the manner of executing the warrant are not divisible the way they were in Segura.

Mr. Salmons: --Your Honor, with respect, I think that's... it would be an improper reading of Segura.

There was an illegal entry, in Segura, that was just as necessary in order to conduct the search and obtain evidence in that case as there was at premature entry here.

Justice Souter: But, in Segura, the court issuing the subsequent warrant says,

"You can... you can go in there and do this. "

The court... by the way, I... maybe this makes it even easier... did the court, in Secuga, know that they were in the apartment?

Mr. Salmons: No, Your Honor.

Justice Souter: Okay.

Mr. Salmons: Their... they had no knowledge of the illegality, and the evidence that was... that was the basis for the affidavit for the warrant was untainted by the illegal entry.

But, of course, the same is true here, there was... there is no allegation at all that--

Justice Breyer: --No, no--

Mr. Salmons: --the warrant in this case--

Justice Breyer: --the difference is--

Mr. Salmons: --is tainted.

Justice Breyer: --All right, look, this... you know, I'd appreciate your explaining this... this seems to me what you're saying in your brief was the inevitable discovery.

The inevitable discovery rule, in my... the way... the way I've thought of it, and I'd like you to correct me if I haven't thought of it correctly... to use a kind of analogy, it's like a primitive tribe that beats a tomtom every morning so the sun comes up.

Hey, the sun's going to come up anyway, and the bodies are going to be discovered anyway, in those cases.

And, in Segura, the warrant is going to be issued anyway.

So, it isn't a question of whether it would have been issued if they had behaved properly, it's a question of what will really happen in the absence of the illegality.

Mr. Salmons: Well--

Justice Breyer: Now, that's what I thought inevitable discovery here was, and, in the absence of these people entering the apartment illegally, they wouldn't have found a thing, because--

Mr. Salmons: --Well, Your Honor--

Justice Breyer: --there was nothing else in motion.

Mr. Salmons: --Your Honor, with respect, that is... that is directly at odds with the way the Court, in Segura, approached--

Justice Breyer: Now, which--

Mr. Salmons: --the question.

Justice Breyer: --case is contrary to what I said?

Mr. Salmons: I think Segura is contrary to that.

Justice Breyer: Segura?

Mr. Salmons: I think Murray--

Justice Breyer: You have just said--

Mr. Salmons: --is contrary to that.

Justice Breyer: --that, in Segura, they would have gotten in, anyway, under a legal warrant that had nothing whatsoever to do with the illegal entry.

Mr. Salmons: In fact, that is precisely the analysis--

Justice Breyer: The sun rose, anyway.

Mr. Salmons: --that's precisely the analysis the Court ordered... took in Segura.

It said, if there had been no illegal entry, the officers--

Justice Breyer: Right.

Mr. Salmons: --would have obtained the evidence--

Justice Breyer: Exact--

Mr. Salmons: --the same way--

Justice Breyer: --No.

Well--

Mr. Salmons: --because they had--

Justice Breyer: --not "would have".

Did.

Mr. Salmons: --Well, Your... I'm just informing Your Honor what the Segura case says.

It says the court... the courts would have found... excuse me... the officers would have found the same evidence that they found pursuant to the warrant if they had complied with the fourth amendment.

That's because the court viewed the... that warrant as a separate independent source for the authority to enter and conduct a search.

One would have to posit, I guess, that the officers in this case, if they... if they would rather not execute the warrant than delay a few additional moments before entering, but I think that would not be a very realistic hypothesis.

Justice Ginsburg: Then your--

Mr. Salmons: Now, with regard--

Justice Ginsburg: --position is that you never... if you have a warrant, then you can seize what the warrant lists.

So, if you have a warrant, then there is never a reason that the police would have to knock and announce, because the warrant gives them independent authority to enter.

That seems to be what you're saying, that as long as you have a warrant, there... the knock and announce does not have to be complied with.

Mr. Salmons: --No, Your Honor.

The knock and announce requirement is... we take no issue with that.

That is required by the fourth amendment.

With regard--

Justice O'Connor: Well--

Mr. Salmons: --to deterrence--

Justice O'Connor: --but in this very case you had an officer who said it was his regular policy--

Mr. Salmons: --Well--

Justice O'Connor: --never to knock and announce--

Mr. Salmons: --That's not--

Justice O'Connor: --to just go in.

So, if the rule you propose is adopted, then every police officer in America can follow the same policy.

Is there no policy protecting the homeowner a little bit--

Mr. Salmons: --Of course the--

Justice O'Connor: --and the sanctity of the home--

Mr. Salmons: --Of course there is--

Justice O'Connor: --from this immediate--

Mr. Salmons: --Your Honor, and that is not--

Justice O'Connor: --entry?

Mr. Salmons: --our position.

And we, respectfully, would argue that that's not an appropriate way to conduct the deterrence analysis.

Even just on the terms of deterrence, we think that suppression here would be a disproportionate remedy.

And that's because, as this Court has repeatedly recognized, the officers already have an incentive, inherent in the nature of the circumstances, to announce and delay some period of time before entry.

Now, there may be--

Justice Souter: But what--

Mr. Salmons: --not--

Justice Souter: --Wait a minute.

What is this incentive inherent in the circumstances?

Mr. Salmons: --It's not to be mistaken for an intruder and shot at, Your Honor.

Justice Souter: Well, it doesn't seem to work.

Mr. Salmons: Well--

Justice Souter: I mean, you've got... this is a case in which the officer testifies,

"It never works, I always go in. "

Mr. Salmons: --That's not really... I mean, to be fair, Your Honor, that's not what he testified to, exactly.

What he said was, he's been shot at several times, and he went in early, in this case, in part because of his safety concerns.

But he didn't speak to any broader policy.

Justice Souter: When is it going--

Mr. Salmons: But, in any event, the--

Justice Souter: --I mean, what reason do we have to believe that this incentive inherent in circumstances is ever going to work in the absence of an exclusionary rule?

Mr. Salmons: --Well, Your Honor, I think... I think there are several reasons.

One... and, again, this Court... these are... all of the things I'm going to list come from this Court's cases, including Nix and Murray and Segura, where the Court has applied the doctrines we ask the Court to apply here.

And what you have is, you have the inherent incentive to knock and announce, because of their own safety concerns.

We think the only thing that might not cover, in terms of deterrence, would be the additional few moments you may want them to wait.

They will announce, and they will delay some period of time.

Now, in the absence of concerns about safety or destruction of evidence, the officers have nothing to gain by entering prematurely.

And so, in doing a deterrence analysis, I think it's important to keep that in mind.

It's not like there's a huge gain for the officers--

Justice Souter: Why don't they--

Mr. Salmons: --when they don't have legitimate concerns.

Justice Souter: --Why don't they have something to gain?

If they're right that there is evidence inside, they gain.

They're... I mean, they're perfectly rational--

Mr. Salmons: Well--

Justice Souter: --in this.

They gain a greater chance of getting that evidence than if they let a few seconds elapse and the evidence can be flushed away.

Mr. Salmons: --To be sure, Your Honor, there are times when they may miscalculate the nature of the concerns about safety and destruction of evidence, but, in cases where there aren't those concerns, they have nothing to gain.

And, in addition, entering prematurely may make them a defendant in 1983 or Bivens actions, which I'm sure that no officer--

Justice Souter: For--

Mr. Salmons: --relishes and--

Justice Souter: --For which there is no record of any recovery in any court in the United States, isn't that correct?

Mr. Salmons: --May I answer, Your Honor?

Chief Justice Roberts: Sure.

Mr. Salmons: Your Honor, I would... I would disagree with that.

And I would point the Court, in particular, to a recent case out of the Seventh Circuit, Jones versus Wilhelm.

The Seventh Circuit has announced the position... it decided the position that we advocate.

There are many cases, Your Honor... the courts... the courts are replete with them... where people--

Chief Justice Roberts: Thank--

Mr. Salmons: --bring those types of claims, and win, and then they settle.

Chief Justice Roberts: --Thank you, Counsel.

Mr. Salmons: Thank you.

Rebuttal of David A. Moran

Chief Justice Roberts: Mr. Moran, you have 4 minutes remaining.

Mr. Moran: Thank you, Mr. Chief Justice.

First of all, as to the evidence that is causally connected to the knock and announce violation, there are two reasons why the remote possibility of such evidence will never deter police officers from violating the knock and announce requirement.

The first is that it's very remote.

I'm not aware of a single case in American history where there has been identified such evidence that is directly causally related only to the knock and announce violation.

But the second reason, more fundamental, is that even if there were such evidence, by definition the possibility of finding such evidence will not deter the police from committing a knock and announce violation, because they wouldn't have found that evidence had they complied with the knock and announce requirement.

In other words, the police would only gain that evidence by committing the knock and announce violation, so there would be nothing lost in going ahead and risking an excited utterance that they wouldn't be able to use, because, by definition, they wouldn't be getting that excited utterance, anyway.

I think it's important, with the solicitor general's brief, to rebut the claim that Miller and Sabbath had something to do with the fact that there was no warrant in those cases.

Nothing in Miller and Sabbath turned on the absence of a warrant.

And, in fact, in Miller the Court specifically said,

"The requirements stated in Semayne's case still obtains. "

"It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant or when officers are authorized to make an arrest for a felony without a warrant. "

The Government conceded, in Miller, that whether there was a warrant or not had nothing to do with the knock and announce violation in that case.

Justice Scalia: I thought the Government's distinction was based on the fact that they were arrest cases.

I thought that's the distinction they were making.

Mr. Moran: Perhaps I misread their brief, Justice Scalia, but I thought it was that there was an absence of a warrant.

Of course, this is an arrest case, as well.

The... Mr. Hudson was seized, and was searched, incident to arrest.

And so, this was also an arrest case, much like Miller and Sabbath.

As for the causal connection argument, if this Court were to accept it, I listed, in my principal brief, a litany of cases that I think would have to be overruled... Katz, Knowles, Silverthorne Lumber... for that matter, Kyllo.

All those cases say that it doesn't matter that the Government has a clear, lawful route to get the evidence; the fact that they didn't follow that clear, lawful route prevents the Government from using that evidence.

And it's impossible to explain how Mr. Baughman's causation theory is consonant with all of those cases.

Chief Justice Roberts: Well--

Mr. Moran: I think--

Chief Justice Roberts: --Well, isn't the... isn't the reason it's consonant is because, in those cases, there is a... the connection, in terms of the purposes of the rule that was violated and the evidence that was seized?

Mr. Moran: --Mr. Chief Justice, I think the same thing applies here.

I think that the knock and announce rule is about the sanctity of the home.

And this Court could not have said it any more clearly in Wilson, that the reasonableness of a search or seizure inside a home is connected to the method of entry.

In fact, the Court said it three times, in Wilson, in various ways.

And so, I think it is the purpose of the knock and announce rule, is to protect the homeowner's right of privacy against shock, fright, and embarrassment that can come with a precipitous police entry.

Chief Justice Roberts: But not the general privacy of the home, because you don't dispute that if he had waited an additional 4 seconds, he could have entered the home and executed the warrant.

Mr. Moran: No, we don't dispute that at all, Mr. Chief Justice.

Finally, I have to ask why this Court has decided all these knock and announce cases in the last 10 years, if my opponents are right.

This Court shouldn't have... they're all criminal cases, and this Court should have simply said the Petitioners or Respondents, as the case may be, cannot obtain the relief they are seeking, because the knock and announce rule is not causally related to the evidence that they're trying to suppress.

And so, if this Court were to adopt my opponent's position, the knock and announce rule will become a dead letter.

There will be virtually no cases, there will be virtually no more development of this rule.

This Court would have been wrong in Miller, it would have been wrong in Sabbath, and it was wrong to reach the substantive constitutional questions it reached in Banks, Richards, Ramirez, and Wilson.

And all the other courts, the... virtually every State currently suppressing evidence seized after a knock and announce... well, they would have to be wrong, too.

And so, a lot of courts, including this Court, have been wrong a lot of times, if my opponent is correct.

Finally, one last word on Segura.

Segura is the sort of case where one can make a respectable inevitable discovery... in fact, a winning inevitable discovery or independent source argument.

But the key thing in Segura is, this Court did not disturb the fact that the evidence that was seized during the initial entry was suppressed, because that was directly connected to the unlawful entry.

And so, the evidence that the police initially seized, before the 19-hour wait in Segura, was suppressed.

Thank you, Mr. Chief Justice.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Georgia v. Randolph - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Georgia v. Randolph

Media File:

04-1067_20051108-argument.mp3

Related Transcript:

2005_04_1067_argument.xml

Transcript:

Argument of Paula K. Smith

Chief Justice Roberts: We'll hear argument next in Georgia versus Randolph.

Mr. Smith: Mr.--

Chief Justice Roberts: Ms. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court--

The question presented in this case is whether one occupant can give law enforcement valid consent to search the common areas of a premises shared with another, even though another occupant is present and objects to the search.

The State of Georgia submits that the answer to this case is a resounding yes.

It is reasonable to recognize that a person who satisfies Matlock's definition of common authority... that is, a definition that is not based upon property law concepts, but one who has mutual use of property by virtue of having joint access or control for most purposes... can give consent for a search of that premises, in his or her own right.

Justice O'Connor: Do we look to what is socially acceptable?

Is there some language to that effect in some of our cases?

Mr. Smith: There has been some of that in some of the prior cases, Your Honor, that you do look to social norms.

You've also said--

Justice O'Connor: Do you think it is the norm that, if there are coinhabitants of a house or apartment, that it's okay to let a stranger in, against the express wishes of your spouse or coinhabitant?

Mr. Smith: --I think that is--

Justice O'Connor: You think that's socially acceptable?

Mr. Smith: --I think it is... I think it is common, Your Honor.

As much as one would like to think--

Justice O'Connor: Well, it might be common, but I'm not sure that's an acceptable kind of performance.

Mr. Smith: --Well, I think, Your Honor, we have what we have called either adduced expectation of privacy or a limited expectation of privacy or what we called a shared expectation of privacy, by making the decision, long before police appear at the door, to share this premises with someone.

And by--

Justice O'Connor: What--

Mr. Smith: --that decision--

Justice O'Connor: --what if the spouse had put a sign up, "No police allowed here"?

Mr. Smith: --I don't think that, even as... in... one could ensure that the spouse would honor the other person's wishes.

I think this case is here to give some substance to the recognition in Matlock of the ability of the cotenant to consent, in his or her own right.

Justice Kennedy: What--

Justice Souter: Is--

Justice Kennedy: --What about the extent of the search?

Can the wife say,

"It's okay for you to come in, and you can look in my husband's top drawer? "

Mr. Smith: I think, Your Honor, that would be a question of fact, under the circumstances, to see whether the husband has exhibited some exclusive use of that drawer or whether the facts would demonstrate that she puts socks in there for him, she puts--

Justice Kennedy: I mean, how does the--

Mr. Smith: --notes in there--

Justice Kennedy: --how does the policeman--

Mr. Smith: --for him--

Justice Kennedy: --so, how is the policeman supposed to know that?

Mr. Smith: --Well, I think... looking... we measure what is reasonable on the part of the police by looking to what they know.

And Rodriguez made very clear, one does... a policeman doesn't simply accept every invitation to enter.

If there's some ambiguity or some uncertainty, the policeman has a duty to inquire.

And, I think, looking into the facts of this particular case is a good example.

You have police who were called to the marital home of Mr. and Mrs. Randolph.

It arose out of a domestic dispute, because Mr. Randolph had absconded with the couple's child.

The officer... this was a small town... the officer knew Mr. Randolph, because Mr. Randolph was a local attorney.

The officer knew that Ms.... who the wife was.

And he knew this was the couple's home.

When he got there, in talking with the wife... Mr. Randolph was off with the child, hasn't returned to the residence... he learned that they had been having some problems, but, in looking at the two conversations that ensued, the policeman learned that, despite the problems, she was back, she was living there.

There was no separation.

Justice Ginsburg: I thought she said she came to collect her belongings.

That didn't sound like she's intending to stay very long.

Mr. Smith: She did not... she did not relay that to the officer.

That came from Mr. Randolph, in his testimony at the suppression hearing.

All--

Justice Ginsburg: But isn't it relevant what the status of the person is?

Someone might not know... the police might not know that someone on the premises is a temporary visitor.

Mr. Smith: --Well, Your Honor... and I think that, looking at the tenor of the conversations, that is exactly what this officer ascertained.

He knew that she was there, they had been living there, she was back, she had been on a visit.

She did not tell him they were separated.

She did not tell him she was--

Justice Ginsburg: She called--

Mr. Smith: --only there--

Justice Ginsburg: --the police, didn't she?

She called the police to come.

Mr. Smith: --She called the police.

And what we have, more importantly, is a factfinding by the trial court that she, in fact, had common authority to give consent to search.

Justice Souter: --And is that a... is there any issue about that here?

Mr. Smith: No, Your Honor.

Justice Souter: In other words, I thought the issue was whether his statement, in effect, vetoed whatever... for Fourth Amendment purposes, whatever permission might have been given.

But, as I... I understood that there was no question... what is it +/?

under Rodriguez, at least... of her authority, facially to admit the police to the places that they went.

Mr. Smith: That is our position, Your Honor.

I think there has been some question raised by the Respondent, in his brief, trying to challenge both her authority over the actual bedroom, itself, which is an issue that wasn't raised below.

Justice Souter: That's what I thought.

Mr. Smith: And there had been an argument raised in the appellate court--

Justice Ginsburg: But we--

Mr. Smith: --about whether she had abandoned the property.

But the trial--

Justice Ginsburg: --But all of this is really getting pretty far from what I think is really the key question in the case.

Matlock is decided.

And Matlock said... it referred to the risk that a joint occupant undertakes, the risk of inability to control access during one's absence.

So, the scene in Matlock is, one occupant is there, the other is absent; and the one who was absent assumes the risk that the one who was there will exercise control.

Matlock doesn't speak to the two people who are in disagreement situation.

Mr. Smith: --That is correct, Your Honor, as to not addressing the spectral situation.

But I would disagree that Matlock simply only spoke to an absent nonconsenting defendant.

Justice O'Connor: Well, what if we think it does?

Because that's how I read it, too, that Matlock governs where one of the people is absent.

And we have a situation that's different here.

Now what rule do we look to?

Mr. Smith: I think you look to whether she has common authority over the premises in his... in her own right.

Justice Scalia: Why?

Justice O'Connor: Even when--

Justice Scalia: Why?

Justice O'Connor: --when the husband is physically present and says no?

Mr. Smith: Yes, Your Honor, because, first of all, you said, in Rodriguez, the Constitution does not guarantee that a search, only with the defendant's consent, will occur.

Your Honors said that--

Justice O'Connor: But, do you--

Mr. Smith: --only a search that--

Justice O'Connor: --do you--

Mr. Smith: --is unreasonable--

Justice O'Connor: --think the officers had sufficient grounds to get a warrant here for a search?

Mr. Smith: --They ultimately did, Your Honor, but that consideration of getting a warrant was also at play in Matlock and, I think, in Rodriguez.

And the point is, if one has valid consent, you don't have to get a warrant.

They--

Justice O'Connor: But that's--

Justice Kennedy: Well, but that's the--

Justice O'Connor: --the issue.

Is it valid consent when the coowner, the husband, is there and says, "No, you don't"?

Mr. Smith: --Well, Your Honor, I think you... we come back to the fact that he does not have a reasonable expectation of absolute or unequivocal control--

Justice Scalia: Why--

Justice Kennedy: --Well, I guess that--

Justice Scalia: --Why not?

I--

Justice Kennedy: --that depends on what we say.

I'm, frankly, still somewhat surprised at your answer to Justice O'Connor, indicating that it happens all the time where there are two occupants, and one expressly says, "You can't come in", and they do anyway.

But leaving that aside, it seems to me that most of the considerations that would impel a decision in your favor can be answered under other doctrines.

If there's cocaine that's being used and may be destroyed, there's exigent circumstances.

I don't see the necessity for the rule that you propose.

Mr. Smith: --Well, I think, Your Honor, its ability... if we're going to have consent, and if we're going to have a third party consent rule, then this is an issue that is going to have to be resolved.

Justice Scalia: --You're talking about--

Mr. Smith: I'm--

Justice Scalia: --reasonable expectations, I suppose, here.

Mr. Smith: --Yes, Your Honor.

Justice Scalia: Why do you assume that it... that it is the reasonable expectation of two people who have... who are living together in... on... in common premises, that, where one of them wants somebody to come in, and the other one does not want somebody to come in, the person may come in?

I would think that the normal assumption is just the opposite, that, where one wants somebody excluded, that person will be excluded.

Mr. Smith: Well, I think, in the Morning case that was cited in the brief, they realized one can always hope that the other will accede to one's wishes.

But, this is the dynamics of personal behavior, and I think it comes from an almost subliminal assertion that the person who was saying no does, in fact, have absolute authority over--

Justice Scalia: In--

Mr. Smith: --that shared--

Justice Scalia: --In Matlock--

Mr. Smith: --premises.

And that's--

Justice Scalia: --In Matlock--

Mr. Smith: --that's out of sync--

Justice Scalia: --In Matlock, did the... did the absent person say no?

Mr. Smith: --He was... it... he was silent.

He had been arrested--

Justice Scalia: So, you--

Mr. Smith: --on the scene--

Justice Scalia: --you don't even have, in Matlock, a situation where you know that one of the parties didn't want entry.

You don't know that.

You... there was one party there, and that party said, "Okay, come in".

And the other party said,

"Well, if I had been consulted, I would have said no. "

or whatever.

But--

Mr. Smith: --Well, in... and even in that situation, Matlock, the reference to the absent nonconsenting defendant was in a paragraph where the court had talked about how it had reserved, in Amos... the Amos case... the question of whether a wife could waive her husband's rights.

And then you had decided the Frazier case, and that was what was described as the nonconsenting absent codefendant in which two cousins had shared the use of a dufflebag, and the defendant had left the dufflebag with the cousin.

The cousin and his mother gave consent for the search.

And it simply was not that the defendant was not present, but this Court found there was mutual use of that bag that gave the cousin the authority to consent.

And then, the Court readily rejected Frazier's arguments that,

"Well, the cousin could only use one compartment of the dufflebag. "

And you said you wouldn't get into such metaphysical distinctions.

Justice Souter: Okay, Ms.--

Mr. Smith: But--

Justice Souter: --Ms. Smith, may I... your time is getting short, and I want to get clear on one thing.

As I understand it, your argument is not an argument that the husband, in this case, lost an expectation of privacy.

You are not arguing that he has no right to object.

Am I correct on that?

Mr. Smith: --I think, Your Honor, we had called it a--

Justice Souter: Okay, and let me--

Mr. Smith: --a reduced--

Justice Souter: --If that is correct, then your whole argument rests on the fact that, although he has, and may assert, an expectation of privacy, that is irrelevant to the right of his wife to let people, including the police, come into an area which is under her control, as well as his.

Is that it?

Mr. Smith: --Yes, Your Honor--

Justice Souter: Okay.

Mr. Smith: --that is.

And I think, looking at Justice Stevens' dissent in Rodriguez, there is that recognition of, When you make the decision to share premises with another, you have lost the expectation of exclusive or absolute control--

Justice Souter: But your expectation... this is what I'm trying to get at... your expectation is not what governs.

You concede, as I understand it, that he still had an expectation, in the sense that he could assert a right of privacy, he can litigate this case, he has standing--

Mr. Smith: --Yes, Your Honor.

Justice Souter: --but that his expectation is irrelevant to the fact that the wife, in this case, we assume, had the right to admit them to an area which was under her control, as well as his.

Is... have I got it correct?

Mr. Smith: Yes, Your Honor, I think so.

Justice Souter: Okay.

Mr. Smith: I think that his... his expectation is unreasonable.

And we would urge the Court not to adopt that and enshrine that as the rule for Fourth Amendment, third party searches.

If there are no further questions, I'll save the remainder--

Justice Ginsburg: So, you would distinguish... in your answer to Justice Souter... this is... this is a lawyer.

One room in the house is devoted... is his office.

Mr. Smith: --Yes, Your Honor.

Justice Ginsburg: Her permission wouldn't extend to that room, would it?

Mr. Smith: I think it would... it would have presented a much closer question of... and particularly given the protection of papers and the fact that you may have business papers in there with attorney client privilege... I think her authority to consent it would have presented a closer question, although it would still be something to look at under totality of circumstances.

She might have operated as a paralegal.

She might have been his secretary.

She might have known where he stashed his cocaine under a particular file.

But that's not the question we have in this case.

We're talking about common areas of a marital home over which both have equal access and control.

And we would urge this Court to recognize that she, with common authority over those premises, has the ability to admit police and give consent for search, in her own right.

Argument of Michael R. Dreeben

Chief Justice Roberts: Thank you, Counsel.

Mr. Dreeben?

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court--

The law of consent searches is governed by a determination of what is reasonable for the police to do in a particular circumstance, and it starts from the premise that consent is not a disfavored species in the law, that cooperation with law enforcement is a good thing and should be encouraged.

The right of the cotenant, in this case, to consent stems from her common authority, which is independent of his and allows her to serve valuable social interests, as well as interests that represents her own personal interest.

Many of these cases arise not among couples who are harmonious, but among couples in which there is some degree of tension, and the spouse who consents in these situations has an independent interest in ensuring that she can call upon the protection of the law.

Justice O'Connor: But we--

Chief Justice Roberts: Was--

Justice O'Connor: --Go ahead.

Chief Justice Roberts: --I was curious, though, which way that fact cut.

I can see the argument that the closer the relationship, the more reasonable it is to say that the one party more or less recognizes that their privacy interests are held hostage to the views of the other.

It's when you get the disrupted relationship, or their adverse interests, that maybe the expectations of privacy, or the reasonableness of one acting as an agent of the other, becomes a little more strained.

Mr. Dreeben: Well, Mr. Chief Justice, I don't think that the law in this area is founded on a notion of agency.

It's founded on a notion of independent authority of each to grant access to the police, to cooperate with law enforcement with respect to premises over which authority is shared.

And in a case like this, the wife has an independent interest in disassociating herself from criminal activity that is going on, on the premises.

Justice Kennedy: But she can do that by advising the police, and then there's probable cause.

Or, if the husband's there, there are probably exigent circumstances.

Mr. Dreeben: Justice Kennedy, there may well be other bases to allow law enforcement activity to go on, but that presupposes that her authority to consent is somehow qualified, if the police could obtain a warrant or some other doctrine, would it support the search?

And this Court has twice rejected exactly that approach to the analysis of consent searches.

Justice Scalia: Mr. Dreeben, does this authority to let someone in, over the objection of the cohabitant, apply only to policemen, or is it... is it also the case that... I don't know, as a matter of, what, property law, or whatever +/?

that when two people have common ownership of a piece of land or a house or whatever, and one of them says,

"I don't want a certain party to come on. "

the tie always goes to the other party, who says,

"I do want somebody to come on. "

is that... is there any cases that establish that proposition?

It seems to me an odd proposition.

I would have thought the opposite.

Mr. Dreeben: Well, the law of property, Justice Scalia, to the extent that it's relevant here, would allow any cotenant to license his or her interest--

Justice O'Connor: But we have not decided Fourth Amendment issues on the basis of the law of property, have we?

Mr. Dreeben: --I quite agree, Justice--

Justice O'Connor: Don't we--

Mr. Dreeben: --O'Connor.

Justice O'Connor: --have to look at social understanding on right to privacy?

And how is it that you can construe, in every instance, a right of a cotenant to override the express objections of the other cotenant, who's there, and says no?

How can you say that's acceptable?

Mr. Dreeben: Well, Justice O'Connor, I certainly do not think that there is any uniform social understanding that should drive the decision in this case, for two different reasons.

First of all, I think, in many circumstances, two people who share property, and who disagree about whether a guest should be invited, will resolve it in a variety of different ways.

Somebody might let in a commercial visitor, over the objection of a cotenant, or someone--

Justice O'Connor: Well, that's possible, but you have a case here where the wife says, "Come in", and the husband is right there and says, "No, you can't".

Mr. Dreeben: --And I think that the other factor that the Court needs to consider in evaluating this is not just social expectations with respect to non law enforcement events and visitors, but this positive, affirmative social interest in encouraging cooperation with the law, which is something that she has the ability to do with respect to property over which she has common authority.

Justice Kennedy: But... well, you keep saying that, but that policy is... can be vindicated by using doctrines other than consent.

And you want us to... I think you want us to say, I think we have to say, that there's a general social expectation that the person who wants entry overrides the person who doesn't.

Mr. Dreeben: I--

Justice Kennedy: And I also agree with Justice Scalia, that social expectation may be, in part, measured by our cases on this subject.

And I just don't see how, if it's against the interest of an occupant to allow entry, that that... that that interest must, necessarily, be overridden.

Mr. Dreeben: --I think that what the Court needs to do is look at the consent search doctrine in relation to third party consents, generally.

Matlock makes quite clear that if the objecting... potentially objecting party, the target of the search, does not voice an objection, then the third party has full authority to allow the search, even if they're--

Justice O'Connor: Well, yes, but there's kind of an assumption there that if the cotenant is not there, sure, you'll let the tenant who is there call the shots.

Mr. Dreeben: --I don't think that, on the facts of either Matlock or Rodriguez, that would be a particularly logical or reasonable assumption.

In Matlock, you're dealing with a man who was arrested for bank robbery in the front lawn of his house, the police take him to a police car, put him in a police car, do not ask him for consent; instead, they go back and they ask the woman, with whom he is living at the house, for consent to search.

Justice Stevens: May I ask--

Mr. Dreeben: Rodriguez is even more dramatic, because, in Rodriguez, the victim of a battery, Gail Fischer, seeks out the police and says,

"I want you to arrest Rodriguez. "

and brings him to the... to... the police to the apartment, where they enter and arrest Rodriguez.

Surely, if Rodriguez had been asked, or if Matlock had been asked, the presumption is, they would have objected.

Justice Stevens: --May I ask two questions?

Seems to me you're... if we're using social analogies in what happens, I imagine that it would make a difference if the person who wants to... who was invited in by the wife, is larger or smaller than the husband.

[Laughter]

And I think he probably would not go in if he thought he was a... could not do so--

[Laughter]

--in his physical encounter.

And the problem with your case here is, the police officer is always larger than the homeowner, and he always has the power to override any physical objection.

So, I think that the... the actual social situation will vary tremendously from different facts as to the fair... and yet, we're looking for a rule that applies equally across the board--

Mr. Dreeben: Well--

Justice Stevens: --in this case.

Mr. Dreeben: --At--

Justice Stevens: And the second question I want you to address at the same time is, What if this was a suitcase that they both owned?

They stopped in the airport.

The wife says,

"I don't want you to open it. "

and her husband says, "Go ahead and open it", or vice versa.

Mr. Dreeben: --Well, Justice Stevens, the second one is the easier one.

The same rule applies.

Anyone who has common authority over the suitcase should be able to cooperate with law enforcement to vindicate both the social interest in cooperating with a law enforcement request and the interests of the person's who's making it.

And I think that that's what Matlock is all about.

Now, as for the attempt to mirror--

Justice Stevens: Well, Matlock is the reasonable police... well, go ahead.

I shouldn't interrupt.

Mr. Dreeben: --The attempt to transpose ordinary social understandings from a myriad of infinitely varied settings that do not involve law enforcement, I submit, will not correctly allow this Court to calibrate what it should be doing, which is balancing the individual interests in privacy against the social interests that affirmatively encourage and validate the use of consent.

And I think what Matlock does, to put this case in context, is to illustrate that if the police had waited until Respondent had left his house to go to work, or to go to court, or to do anything else, or if he had stayed there and gone to sleep at night, then Matlock tells us that she would have full authority to allow the police into the house to conduct a search of common areas.

And, for this Court to announce a rule that says, no, when the person is there on the scene and vocalizes an objection, which we can reasonably presume that he would have if he was given the opportunity to voice it, would mean that police simply have an incentive to find a different way to accomplish the same end.

And I would submit that that does not give adequate--

Justice Stevens: The "different way", of course, would be to get a warrant.

Mr. Dreeben: --An option would be to get a warrant in cases where the police do have probable cause, but, as this Court recognized in Schneckloth versus Bustamonte, the courts... the officers will not always have probable cause.

Justice Ginsburg: Would they, on... in... on these facts... I thought not, but perhaps I was wrong... the... when the police come to the house, they don't suspect anything about cocaine.

Wife then accuses husband of being a cocaine user.

So, that's the first information the police have.

Could they get a warrant, just on her say so?

In fact, they got the straw that had the cocaine residue on it.

They went to the magistrate with that straw, and he gave them a warrant.

But if they had nothing but the wife's accusation,

"He... he's a cocaine user. "

would that amount to probable cause?

Mr. Dreeben: I think it clearly would, Justice Ginsburg.

And the facts in this--

Justice O'Connor: It would, or would not?

Justice Stevens: It would?

Mr. Dreeben: --It would amount to probable cause if the wife, who has... she's in a position where she would know what's going on in the house, what kind of activity is going on in the house, she is a presumptively reliable citizen providing information to the police, and the fact--

Justice Scalia: All she said is, "He's a cocaine user".

Does that... does that... does that give probable cause to believe that there are... you know, that there's contraband on the premises or--

Mr. Dreeben: --Well, that's not all she said, Justice Scalia.

Justice Scalia: --Oh.

Mr. Dreeben: What she said was that there were items of drug evidence--

Justice Scalia: Yes.

Mr. Dreeben: --in the house.

And if you look at the warrant that the officers obtained, it more clearly elaborates that she said there were drugs and paraphernalia.

But, for the Court's purposes, this case is virtually identical to Illinois versus McArthur with respect to the probable cause.

You have a wife and a husband who are in a domestic dispute, and the wife comes out, in Illinois versus McArthur, and tells the officers, you know, "He's got drugs inside there".

And the Court was unanimous, I believe, on the point that that furnished probable cause.

But what is different from Illinois versus McArthur, and this case, is that the police officers have the consent of someone who reasonably appears to them to have common authority, someone who's living in the marital home, someone who is in a position to know what's going on and exercise her own independent authority.

And for this Court to say, "Well, there are alternatives"... you know, the police could pull Respondent out of the house and quarantine it while they go get a warrant, or the police could do other investigation, or they could rely on exigent circumstances... what that does is treats her consent as worth nothing.

It reduces her--

Justice O'Connor: Well, not nothing, because we have cases that have said, if the coinhabitant is not there, he relinquishes whatever right he had to object.

But if the coinhabitant is there, and says no, what's the matter with giving effect to that?

Mr. Dreeben: --I think it's very odd to say that, in Matlock, the right was relinquished, when Matlock was arrested and taken to a police car and was never asked for consent, or that Rodriguez relinquished his right by falling asleep in his own apartment.

What really... I would qualify my statement, though, in response to your comment, Justice O'Connor.

It's not that it treats it as nothing.

It would treat her consent as 100 percent valid when he's asleep or absent, no matter how much we know he would object, and it would treat it as zero when he's on the scene and vocalizes an objection.

And I think that that would protect Fourth Amendment rights only by happenstance, or, worse, it would simply be an invitation to the--

Justice O'Connor: Well, but it's by happenstance that the police find the wife in the house.

I mean, it's six of one, half a dozen of the other.

It's a happenstance.

Mr. Dreeben: --Well, in this case, as in many other cases involving this kind of potential incident, the wife called the police to the scene.

So, there was a reason for them to be on the scene.

It was a perfectly valid investigatory step.

And once they acquired the information relating to drugs on the premises, and had the authority of someone who's in charge of the premises, I submit that the police should be able to conduct the search as a reasonable matter under the Fourth Amendment, just as they would if Respondent had been asleep or if Respondent had said,

"Well, I have to go now. "

"Am I free to go? "

and the police said that, "You are".

And I don't think that it always would be an advantage for the nonconsenting tenant, somebody like Mr. Randolph, to insist on the police getting a warrant or conducting a probable cause arrest.

If he's arrested, he's taken down to the station, he has a search incentive to arrest, he may not get a hearing for 48 hours.

If the police do have to get a warrant, they are entitled to search anywhere and everywhere in the premises; whereas, in this case, one of Respondent's main claims is that she wasn't credible.

Well, if she wasn't credible, and she had led the police upstairs, and the police had found nothing, that might have been the end of the whole incident.

And I think that it's because of the socially valuable function of efficiently resolving accusations, potentially dueling accusations of criminal conduct that consent searches can facilitate, that this Court has said that consent searches are a positive social good and should be encouraged, rather than discouraged.

Justice Thomas: Mr. Dreeben, is it... is this case materially different if she simply ran upstairs, grabbed the straw, brought it down, and handed it to the police officer?

It's, in effect, the same thing, isn't it?

Mr. Dreeben: It is, in effect, the same thing.

And I think that, had that happened, there would have been no question that, assuming that the police reasonably believed that she had authority to do it, and possibly even if they didn't, the contraband would have come into the hands of law enforcement, and there is really no reason, or doctrine under the Fourth Amendment, to deny it.

Justice Kennedy: You want us to take the position that there's no legal difference between, (a) entering a home and taking something, and, (b) receiving it on the outside?

Mr. Dreeben: I think that the difference, when you receive something with the consent of someone who has the authority to exercise control over it, is a question of whether she leads the police upstairs, or whether she brings the item downstairs.

And, for Fourth Amendment purposes, I don't see a difference.

Thank you.

Argument of Thomas C. Goldstein

Chief Justice Roberts: Thank you, Mr. Dreeben.

Mr. Goldstein.

Mr. Goldstein: Thank you, Mr. Chief Justice, and may it please the Court--

The Court should hold that it is not reasonable for officers to conduct a consent search when a person with an equivalent interest in the premises expressly objects.

Chief Justice Roberts: What about the telephone call between a husband and wife, and the wife tells the police, "Listen in on this call"?

She's consented to the monitoring of the conversation, the husband has not.

Maybe he even begins the call by saying,

"I... don't let anybody else listen to this. "

It's clear that that is admissible, isn't it?

Mr. Goldstein: It is, Mr. Chief Justice, although not on the theory of third party consent.

The analog to your hypothetical, which is this Court's decision in Lopez, is Justice Thomas' reference to Coolidge versus New Hampshire... to the New Hampshire case.

And what happens there is, this... Mrs. Randolph could take the cocaine and give it to the officer.

She was participating in giving an item to them.

It is not the same, I think, when she authorizes the police to conduct a generalized search of the premises.

It would be as if--

Chief Justice Roberts: She's consenting.

It's an intrusion, in the one case, on the conversation; in the other case, on the home.

In the telephone case, it's recognized, in the law, the consent of one party subjects the other to having the conversation monitored.

In this case, the consent of one party subjects the other party to the search.

Mr. Goldstein: --But... yes, Mr. Chief Justice.

I do think that Lopez and White, in that line of cases, established that other things that people do consent to can expose us to intrusions on our property.

What I think, however, is, it doesn't follow that she can authorize the... them to conduct a generalized search of the premises.

It's as if she were saying, "You can listen in on"--

Justice Souter: Well--

Mr. Goldstein: --"# all the phone calls"--

Justice Souter: --Excuse me.

Mr. Goldstein: --"# in the house".

Justice Souter: It was... it was the... it was a search only of premises with respect to which she had, supposedly, common rights.

I mean, we take the case on that assumption.

Mr. Goldstein: You do--

Justice Souter: If--

Mr. Goldstein: --Justice Souter.

Justice Souter: --If she and her husband, you know... if she had a right to be in only two rooms, she couldn't authorize the search of the whole house, right?

Mr. Goldstein: That is--

Justice Souter: Okay.

Mr. Goldstein: --correct.

But, Justice Souter, I think the thing that is important... and I want to get to your line of questioning about exactly what the nature of the State's argument is... is that he had a distinct individual right to privacy at the core of the home, as opposed to, for example, information privacy.

Justice Souter: All right, then he--

Chief Justice Roberts: Well, that--

Justice Souter: --if he--

Chief Justice Roberts: --begs the question... it begs the question to say

"it's a distinct individual right to privacy. "

It's a little academic to talk about his individual right to privacy when he's sharing the home with someone else.

Mr. Goldstein: Mr. Chief Justice, that's why I finished off on that.

Let me just focus on the important part of my statement.

And that is, we are talking about a search of the home, at the core of the Fourth Amendment.

This Court's doctrines are quite different about situations in which you share information with third parties.

Let me step back and do the case before Lopez, and then explain how it was extended to Lopez.

Cases like White say,

"If you give information to someone else, you... they can give it to the police without conducting a search of you. "

This is a very different situation.

The police are clearly conducting a search of a premises that I think, Justice Souter, it has to be agreed, he has a reasonable expectation of privacy with respect to.

Now, Justice Souter, it is absolutely right that there are instances in which people have expectations of privacy, and yet searches occur, notwithstanding those.

And there is an argument to be made here that says,

"Look, he has a reasonable expectation of privacy, but the police came in for a different reason. "

That would be true, for example, if there was a warrant; they would come in, notwithstanding his reasonable expectation.

That would be true if there were exigent circumstances.

But the theory of consent is very different.

Schneckloth, Zap, all of the Court's precedents--

Justice Souter: --Well, it... let me make sure I understand where you're going.

We agree that he had a reason... everybody agrees, I guess, that he has a reasonable expectation.

He can... he can raise his Fourth Amendment claim.

Your argument is that, even though we get past the reasonable expectation, there's a second reasonableness question, and that is, Is the search, itself, reasonable?

Mr. Goldstein: --Good guess.

Justice Souter: And that's the focus of your argument--

Mr. Goldstein: Exactly--

Justice Souter: --correct?

Mr. Goldstein: --right.

Justice Souter: Okay.

Mr. Goldstein: But I do think it's important, of course, this Court's precedents have often said that the degree of the expectation informs the reasonableness of the search.

A consent--

Justice Souter: Okay.

Mr. Goldstein: --search is reasonable.

Reasonableness, or course, is a balance--

Justice Breyer: All right.

Well, I... the words that keep going around in my mind... it's her house, too, isn't it?

Mr. Goldstein: --Yes.

Justice Breyer: Well, she wants the policeman in.

So, why does he have more of a right to keep the policeman out than she has to have the policeman in?

Mr. Goldstein: I think everybody makes their--

Justice Scalia: And vice versa.

Mr. Goldstein: --Yes.

I think that--

Justice Breyer: Right.

Mr. Goldstein: --that's the point--

[Laughter]

--is that... that everybody makes some... there are two things.

Justice Breyer: Everybody makes some sacrifices.

Mr. Goldstein: That's--

Justice Breyer: All right--

Mr. Goldstein: --right.

Justice Breyer: --let's think--

Mr. Goldstein: And so, he--

Justice Breyer: --of the need for this, because it's the other thing that's on my mind.

The two words that came into my mind are "spousal abuse".

All right?

I would say maybe there's a pretty good need for this.

The husband's beating her up.

And there isn't evidence of that, but she's sitting in the kitchen table, and the neighbors hear something odd, and they call the police.

"We'd better look into it".

They come to the door.

She says,

"Um, hmmm, oh, I'd like, Officer, for you to just come upstairs to my bedroom for a minute. "

Is there any neighbor, friend, or policeman, in those circumstances, who wouldn't go?

Mr. Goldstein: --Justice Breyer, because she's not authorizing a search... she wants them to come in and talk to her, wherever, in the house... that might be a different case.

The two words--

Justice Breyer: Oh, no.

It's the question of the rule.

I haven't seen anything on your side that would advocate a rule that would not prevent the many, many, many, I believe... I am not an expert... ambiguous cases of domestic spousal abuse from being investigated by the policeman.

And maybe you can tell me you've looked into it empirically and I'm wrong, and that's why I'm bringing it up.

Mr. Goldstein: --Yes.

Okay.

I have, and I can.

Since 1974, when this Court decided Matlock, the Federal and State Courts, combined, have considered this question.

And so, there was a finding of evidence, and it led to a suppression hearing.

That's the best that I can do.

Fifteen times, all the Federal and State Courts, once every two years.

It is the case that in that... in... last year alone, there were 200,000 domestic disputes that were reported.

But that's just the city of Chicago.

What we're considering here is the situation in which there is no real need for the police to--

Justice Breyer: No, no, but... no, I'm not getting your answer.

Are you telling me that it is the law in Chicago, for example, that if a policeman responds to a call, a call of... it's ambiguous... what it says is,

"An anonymous caller said there's an odd situation next door. "

"Will you check out 2355 Maple Street? "

He goes there.

The wife looks a little oddly at him, but they're sitting at the table, and she says,

"Officer, I'd like you to come upstairs with me. "

The husband says no.

Are you saying that the law is clear in Chicago that the policeman can't do it?

Mr. Goldstein: --No.

What I'm--

Justice Breyer: All right.

Where--

Mr. Goldstein: --saying is--

Justice Breyer: --is it clear that the policeman cannot do it?

Mr. Goldstein: --Well, Your Honor, the... it is an unresolved question of--

Justice Breyer: Fine.

Mr. Goldstein: --this Court.

It's--

Justice Breyer: That's what--

Mr. Goldstein: --equally divided--

Justice Breyer: --I thought it was not clear.

And, therefore, what I'm asking you for is... if your rule--

Mr. Goldstein: --Yes.

Justice Breyer: --is the law--

Mr. Goldstein: Yes.

Justice Breyer: --there are 200,000 cases a year in Chicago, alone.

I think that there might be many ambiguous cases.

So, you relieve me of my concern that if you win this case, in those ambiguous situations, where the wife wants the policeman in, and she's afraid to tell him why, until she gets him up to the room... she wants him in... and he, now under your rule, as far as I can see, could not go in.

And I'm telling you, quite frankly, that's what bothers me a lot.

Mr. Goldstein: All right.

Let me answer this on several different levels.

First, there is no serious argument that we interfere with investigating abuse claims.

The conversation can happen.

It may not happen, arguably, in a place that he has a right to privacy, but it can happen outside.

It happens outside all the time.

If there is any suggestion that a reasonable officer would believe that there was an ongoing crime, there was abuse going on right then, then it's clear that exigent circumstances would authorize the--

Justice Breyer: There aren't exigent circumstances.

In the case I'm thinking of, I'm thinking of what I call "ambiguity", and there are many such cases, I believe, of spousal abuse, where the wife is intimidated.

Now, maybe I'm wrong on my facts, but those are the cases I'm worried about.

Mr. Goldstein: --Justice Breyer, I am not an expert in spousal abuse; and so, I'm not... which I think is a very serious issue.

I do know one thing about my rule, and that is that, under our rule, and under the rule that the Georgia Supreme Court articulated, they are allowed to speak with her, including speaking to her outside.

It's true, there may be some sacrifice.

And you have identified a sacrifice.

And that is, she can't take them into a room in which he has a constitutional expectation of privacy.

I will concede that if he says,

"I don't want you in the bedroom. "

that will be a sacrifice.

But what I am saying is that there is no serious argument that they can't have the conversation in a place where she feels secure.

That's on the porch, that's in a police car.

If she says,

"I need you to come up. "

and there's been abuse, then what would have happened in this case... let me explain what happened in this case.

The officers asked Mr. Randolph first.

He said no.

They found out... had found out from her that there was drug paraphernalia on the premises.

What they had to do in order to conduct this search... if they wanted to search, rather than having her bring the materials out... is to pick up the phone and get a telephonic warrant, which would have taken less than 5 minutes.

The real reason I bring to your attention the 200,000 domestic disturbances is that what you should be concerned about, I think, is not the 15 cases, which is not a serious intrusion on law enforcement interests over 30 years, but it's the many times in which our family relationships ebb and flow.

We are concerned here with the person... the Fourth Amendment is... it's not the person who has the drugs or the abuser.

Consent searches involve a situation in which the police come to the door, and they say, "Can we search"?

Because they do as much as they are permitted to do.

And the person just says, "Sure", perhaps completely ignorant of her rights.

There's no reason to believe anything is going on.

And what the State's position is, is that, despite the fact that this is the home, and that the core of the constitutional right to privacy in the text of the Fourth Amendment is that the only thing he can do to be secure in the language of the Constitution is not live with someone else.

Remember, the theory--

Chief Justice Roberts: Well, all--

Justice Scalia: Well, you're--

Chief Justice Roberts: --reflects is the--

Justice Scalia: --Go on.

Chief Justice Roberts: --I was just going to say, it just reflects the expectation of privacy.

And when you do live with someone else, you compromise your individual privacy interest to that extent.

We know that you compromise it to the extent that if you happen not to be there, and that person says,

"Sure, come on in and search. "

that's going to bind you, as well.

Why is it... why do you not compromise the expectation to the extent of giving the other person the right to consent?

Mr. Goldstein: --Mr. Chief Justice, I do think you've put your finger on it.

And I just want to say, Justice Souter, that I do think that the other side's argument inevitably does revolve around this notion of an expectation of privacy.

And, Mr. Chief Justice, I think the expectation is... and this is what the Court said in Minnesota versus Carter... that, while it's technically possible that the people... Minnesota versus Olson, I'm sorry... the people that we live with will admit others over our objection, our expectation about what... about what will happen, our reasonable expectation, is different.

And I also want to take--

Justice Souter: Yes, but Olson was a standing case.

Olson was not confronting this situation.

In Olson, the police simply went in without a warrant.

And the argument was made that this person was not the normal inhabitant of the... what was he?

A houseguest or something of the sort.

And the only issue that Olson addressed was his right to raise a Fourth Amendment claim.

It did not respond to the issue that you are raising, which is the reasonable extent of search.

Mr. Goldstein: --Justice Souter, that's why I, sort of, paused and came to you.

And that is, I do think that the other side's argument... I want to say two things.

One is that it inevitably reduces to the idea that we have a lessened expectation of--

Justice Souter: I don't--

Mr. Goldstein: --privacy--

Justice Souter: --I don't see that--

Mr. Goldstein: --Okay.

Justice Souter: --at all.

Mr. Goldstein: Well--

Justice Souter: They concede... the only expectation of privacy you've got to have for Fourth Amendment purposes in order to raise a claim is a minimal one... they concede that the... that this individual has an expectation of privacy sufficient to raise a Fourth Amendment claim.

Mr. Goldstein: --But--

Justice Souter: Their argument is that, although he can raise it, the rights, however they may be derived on the part of his wife, allowed her to admit the police... in effect, thwarting his expectations.

Your argument, as I understand it, is that when the police search with that kind of permission, over his objection, it's not a reasonable search.

Isn't that the way to structure the issue?

Mr. Goldstein: --Justice Souter, I think it is.

I will only say, in my defense, that their brief articulates it in the manner that I was describing it, I think, with the Chief Justice.

But let me--

Justice Souter: That--

Mr. Goldstein: --let me--

Justice Souter: --I... I agree with you.

Mr. Goldstein: --Okay.

All right.

Justice Souter: There is this talk about lessened--

Mr. Goldstein: Yes.

Justice Souter: --expectation, and I... I think, ultimately, that's irrelevant.

Mr. Goldstein: All right.

Let me look at it through the other lens.

And that is from the perspective of a reasonable police officer.

I think there are two points to make.

The first is, I... the common ground between the sides in the case is, you look at it from the perspective of the person who arrives at the house, and you ask what is reasonable.

And if someone arrives at the house, it is a different matter entirely if, as in Matlock or in Rodriguez, someone says, "Come on in", and they... you believe they have authority over the premises, versus you come to the house and someone with authority over the premises says, "Come on in", and the other person says, "No, stay out".

Justice Souter: Okay.

Now what's your--

Chief Justice Roberts: Well, that's not a fair reading of Rodriguez.

There, it was,

"Come on in, he's asleep. "

It was quite clear that if he were awake, he was going to say, "Don't come in".

Mr. Goldstein: Mr. Chief Justice, the Government has argued successfully in this Court that we don't make any assumptions about whether people will consent or not.

There are innumerable cases in the lower courts--

Justice Souter: --Well, maybe we don't, but isn't there... isn't the... isn't Mr. Dreeben's argument fair that no one in his right mind would have expected Matlock to agree to this?

It is clear that Matlock, had he known what was going on... and he may have; I don't know... would have objected?

So that if we accept your argument that the presence of the person there expressing an objection is what makes the difference, then Matlock and Rodriguez become almost silly cases.

They are... they are... they're cases that rest upon an assumption that is clearly contrary to fact.

Mr. Goldstein: --No, Justice Souter.

And that is, the Government has argued, and this Court has accepted, again... and this is a different point; and that is, you have to have a clear line for police officers that is administrable.

And the line that is reflected in Matlock and Rodriguez is, if you get consent to come into the house from someone who has the common authority to do so, that will be sufficient, but that doesn't mean that if some... and so, you don't have to go around and... finding other people and asking other people.

It's just as if you showed up at a house, and you were invited in.

You wouldn't say,

"Well, let me check with everybody else-- "

Justice Souter: Sure, but--

Mr. Goldstein: --"# who lives here".

Justice Souter: --an equally clear line would simply be that, if the area to be searched is one of common tenancy or occupation or whatnot, the only consent that will suffice will be the consent of the person against whom you expect to use any evidence found.

Easy clear line.

Mr. Goldstein: It's true, Justice Souter, there are a lot of possible clear lines.

What I'm describing to you is why the difference between Matlock and this case is one in kind, and that is that Matlock, I think, reflects an administrable rule, and that is, if you do have permission from someone who has the authority to admit you, you don't have to go ask anybody else.

Justice Souter: Okay.

Mr. Goldstein: But that--

Justice Souter: But an equally administrable rule here is that, even though the person you suspect objects, you can still go in, if a person with authority otherwise says you can.

Equally clear rule, and it has one advantage, it does not turn Matlock and Rodriguez into silly cases.

Mr. Goldstein: --Justice Souter, I don't think they're silly cases.

I think that it is an important rule that the police show up and they are able to rely... if they only hear from one person, they're able to rely on that person.

I don't... the... I'm not claiming that our rule has great administrative advantages over the other side's.

What I'm saying is that it is not necessary to sacrifice the individual's privacy who lives in the house... as you say, has an expectation of privacy.

And so, let me return--

Justice Breyer: An expectation of privacy.

I have a lingering question here I'd like to get your view on.

I don't know what the expectation is, is my problem.

If I think of social... I've never been in a situation, frankly, where one person said, "Stay out", and the other said, "Come in".

So, I don't know what I'd do.

If I imagine myself in a normal social situation, I think probably, if I am the typical person, which may or may not be, I--

[Laughter]

--I think I'd say,

"Well, you know, I don't want to have anything to do with this. "

If it's a dinner party, forget it.

But if I'm in a situation such as the police might be involved in, where I think there is some danger, there is something wrong in the house, there's something odd about it, I don't think the average person would just say, "I'm going away".

I think the average person either would come in, or he'd say,

"I'll come in for a while. "

"I'm going to call the police. "

or they're... you just wouldn't have that reaction,

"I want nothing to do with it. "

That's the reaction, you know... that's a bad reaction, when you want nothing to do with a dangerous situation.

So, I think, in that situation, the normal reaction would be, "I'm going in", or,

"I'm going to get some help. "

or,

"I'm going to get a friend. "

or,

"I'm going to call the police. "

So, I don't know you do have expectations of that kind, in those situations, though you might with a dinner party.

Mr. Goldstein: --Justice Breyer, I think that's why it's important that our rule is not that the police should go away.

We call for a balance here, and--

Justice Breyer: But I want you to address the question of how the legal category of "reasonable expectation of privacy" fits in with what I just said, where I'm assuming, in some social situations, you do think you'd be left alone; but, in the typical situation, stretching well beyond, but certainly including, situations of danger where the police might be involved, you wouldn't have an expectation that you will be left alone.

I want to know how those facts, if they are facts... and you can say they were not... fit within the category called "reasonable expectation of privacy".

Mr. Goldstein: --Justice Breyer, the Court has precedent on this very point, and that is... and, Justice Souter, he is asking about reasonable expectations of privacy... Minnesota versus Olson.

The Court considered this and said the very reason that person had standing and could... had a Fourth Amendment right is because they did have a reasonable expectation of privacy in the premises, that, even though they had no property rights to keep any... this is the overnight guest... had no property rights to keep anybody out at all, their expectation... their reasonable expectation of privacy for Fourth Amendment purposes... is that if somebody wanted to come in, to which they objected, that objection would be honored.

Now, I don't want to lose sight of the fact that our position is the balance; and that is, we don't tell the police to go away.

We say,

"Look, if she tells you that there's contraband in the house, she can bring it out. "

That's the Coolidge case.

And I do think, Justice Thomas, that there is a difference in kind, not degree, in giving something to someone and then having... versus having a uncabined search of a house.

The complaint--

Justice Thomas: The... but this was not an uncabined search.

That's my problem.

What you're... what you're... the bottom, you're saying to us, is that it's not unreasonable... an unreasonable search if she went upstairs and brought the straw down, right?

Mr. Goldstein: --Yes, because that's not a search.

Justice Thomas: Okay.

But you're saying it is an unreasonable search for her to lead the police officer to the straw.

Mr. Goldstein: Justice--

Justice Thomas: Which is what she did.

Mr. Goldstein: --Justice Thomas, it's how it played out, because they stopped the search then, because she withdrew her consent.

But what she authorized was something very different.

She--

Justice Thomas: But she withdrew it after he observed the straw.

Mr. Goldstein: --Yes, Justice Thomas, that's absolutely correct.

My point, instead, is that what happened here, in terms of the consent, and what the State's rule of law would authorize, and what Matlock and Rodriguez authorize if they're extended to this point, is not, "Take me to the drugs", which is an interesting proposition, but, instead,

"Go ahead and search the whole house. "

So, our point, Justice Breyer is,

"Look, don't leave. "

"Get a telephonic warrant. "

"It takes 5 minutes. "

"If you know there's something in the house, bring it out. "

"If you have anything to... any reason to believe there's ongoing criminality, seal the house. "

Justice Kennedy: Now, any reason to believe--

Mr. Goldstein: Of--

Justice Kennedy: --but--

Mr. Goldstein: --Sorry.

Justice Kennedy: --you can't enter without probable cause.

Mr. Goldstein: Right.

Justice Kennedy: And that's a... with exigent circumstances.

Mr. Goldstein: Yes.

Justice Kennedy: Suppose you have suspicions of a domestic problem that's ongoing.

It's short of probable cause, but you have reasonable suspicion.

Does that alter the nonconsenting party's interest and elevate the consenting party's interest?

Mr. Goldstein: Justice Kennedy, I don't think that it does.

Our view of the law is that the question is, When the property rights are... and their... their control over the property, I should say; I don't mean to invoke the common law... when the control over the property is equivalent, then, in that tie, if you will, the Fourth Amendment controls.

If... there are doctrines designed to protect against situations in which you have concerns about ongoing criminality and protecting people.

But that's--

Chief Justice Roberts: You talk about that tie.

Your approach applies in the case... a dormitory, you have a common room, there are ten rooms off of it, nine people say,

"Sure, come on in and search. "

and the one person says, "No".

That one person exercises a veto over a search of the common area?

Mr. Goldstein: --Mr. Chief Justice, the straightforward rule that I have argued for today is that if you have an equivalent interest in the premises... it is, of course, the State's rule that, if nine people object, Matlock says that any one of them can let them in, and an individual can override the objections of everybody else in the house.

What I'm saying, I think, just to return to the basics, is, I do think--

Chief Justice Roberts: What... well, what is your answer--

Mr. Goldstein: --I'm sorry.

Chief Justice Roberts: --to that case?

Your case is that, if one out of ten who share the common room says to the police, "You may not come in", that controls?

Mr. Goldstein: I don't think that has to follow from our rule.

It's true, we have articulated one broad rule that would allow the Fourth Amendment to control, but I think if we analogize to the social situation... if you said to yourself,

"What do you expect will happen if nine people that you live with want to let in someone and you're the only one who's going to object? "

--I think it would be perfectly reasonable to say to... that individual expects the... them to come in.

Justice Souter, let me return... I want to make sure I--

Justice Souter: But the... I... you assume we got... there goes the... that... there goes any bright line administrable rule, I guess.

[Laughter]

Mr. Goldstein: --Justice Souter, I honestly don't think that's true.

I think that Illinois versus Rodriguez, on this question, which is assessing the degree of the authority over the premises, does call for a "totality of the circumstances" inquiry.

I also don't know that I fully answered your point, that we look at this question from the perspective of the officer and the reasonableness of the search.

And let me just say that, in Matlock and in Rodriguez, the Court's analysis was that it's reasonable, because the person whose privacy is intruded on has assumed some risk.

The Court does look to the privacy interests of the person who is ultimately the defendant.

That's a... an element of the reasonableness inquiry.

And our point, fundamentally, is that it cannot be the case that when the framers enacted the Fourth Amendment so that you could live with other people and have a private space away from the Government, that you, merely by living with your family, assume the risk that your privacy will be lost.

That assumption of the risk--

Chief Justice Roberts: So, can I just take the next step in my hypothetical?

The wife and the two adult children who live in the home say, "Come on in", and the husband says, "No".

What happens then?

Mr. Goldstein: --On our broadest rule, the husband would control, although it doesn't follow, from our... that, to affirm the judgment, you have to say that, because I think you could say that, reasonably, the person realizes they would be outvoted.

But I do think the children is an important point.

Chief Justice Roberts: Reasonably, the person realizes he would be outvoted?

Mr. Goldstein: Yes.

Chief Justice Roberts: So, it does go to his presumably objectively reasonable views of what nature of privacy he has.

Mr. Goldstein: Yes.

And what--

Chief Justice Roberts: So, if he thinks,

"Look, I've been having a bad time with my wife. "

"I think she's going to consent and let the police in if I'm not. "

--then his objection shouldn't control?

Mr. Goldstein: --Mr. Chief Justice, when... I agree with you objectively.

This Court didn't, for example, in Matlock and Rodriguez, look at the particular family dynamics at that time.

It looks to broader social understandings.

I did want to return to your "children" point.

Remember... and I think this is a vital point... and that is, the Courts of Appeals uniformly conclude, after Matlock and Rodriguez, that children are residents, which is the inquiry in Illinois versus Rodriguez, and they can give consent to search a home.

It necessarily follows that if you extend that rule, Matlock and Rodriguez, to this case, that children, because they have the authority to admit the police... minor children, 12, 14, 15... can then authorize the search, notwithstanding the objection of the parents.

Now, if everyone agrees,

"That can't be right, it's the parents' home. "

that's because we are assessing--

Justice Ginsburg: What is the case that says that, that the child's invitation overrides the parents' objection?

Mr. Goldstein: --Justice Ginsburg, that question hasn't been confronted by any court we've checked.

But what I... what the Courts of Appeals have confronted repeatedly, and uniformly agree... and it's in our brief... is that children satisfy the Matlock and Rodriguez--

Justice Ginsburg: So--

Mr. Goldstein: --standard.

Justice Ginsburg: --would a mother in law.

[Laughter]

Mr. Goldstein: Yes.

Chief Justice Roberts: But they don't have the same... they don't have the same property interest as a spouse does, as a tenant in common or whatever.

The child doesn't have that interest in the home.

Mr. Goldstein: Mr. Chief Justice, that's right, but, of course, that's not the inquiry under Matlock and Rodriguez.

If we take your point, then we are definitely moving beyond Matlock and Rodriguez.

We're going to have to look to more.

And my point is that, if we do look to more than simply the fact that the officers have found someone, however ignorant, has the ability to consent in their own right, if we're going to assess the other factors, the rule should look... the Court should look to what the ordinary social understandings and--

Justice Ginsburg: Mr. Goldstein, your time is almost up, but I want to know if you place any weight at all on the fact that the husband was the target in this case.

The target said, "No", and the one who wasn't under suspicion said, "Yes".

Does that make any difference?

Mr. Goldstein: --The... I do not believe, as a matter of doctrine, that it does.

I do think, however, that it informs this Court's analysis of reasonableness, in the sense that the Court, in Schneckloth, said,

"We are not going to allow consent to circumvent the requirements of getting a warrant. "

And it is the case... we have to inescapably agree, I think, that this is simply a way of getting around the warrant requirement.

They wanted to find out something about him.

He had a privacy interest in the premises.

He said, "No".

The Constitution says,

"You have somebody who's cooperating with you. "

"Let them tell you what's going on in the house. "

And Illinois versus McArthur says, "Seal off the premises".

In fact, Illinois versus McArthur is... the very point of the Court in that case was that it's much better to seal the premises and get a warrant, which will define--

Justice Breyer: Was there anybody in that case who... since I wrote it, I guess I'm supposed to know it in detail, but I don't--

[Laughter]

--and I thought, was... there was no one... no consent there.

There was nobody giving consent, was there?

Mr. Goldstein: --Oh, Justice--

Justice Breyer: Was there?

Mr. Goldstein: --Justice Breyer--

Justice Breyer: I'll go back and read it.

Mr. Goldstein: --she said, "I think you should"... she said--

Justice Breyer: I'll reread it.

[Laughter]

Mr. Goldstein: --Okay.

She said,

"I think you should go in there and get it. "

Justice Breyer: Uh huh.

Mr. Goldstein: But, inescapably, what's going on, there are... I think that this is not a case that follows, necessarily, from Matlock and Rodriguez.

And there is a bright line to be drawn, and that is, you are going to have to not live with your family, which is precisely what the Fourth Amendment is about, in order not to assume the risk of the police coming in.

The reasonableness determination is a balancing of law enforcement and privacy interests.

The privacy interests are very high.

The police can easily get a telephonic warrant or have the materials brought out to them.

It is not necessary to take this case, when so rarely has it been that the police have needed to use this authority.

If there are no further questions.

Rebuttal of Paula K. Smith

Chief Justice Roberts: Thank you, Mr. Goldstein.

Ms. Smith, you have a minute and a half remaining.

Mr. Smith: No rebuttal, Your Honor.

Chief Justice Roberts: The case is submitted.

Attribution:

The Oyez Project

Featured:

Muehler v. Mena - Oral Argument

Fri, 09 Jan 2009 14:49:03 +0000

Case:

Muehler v. Mena

Media File:

03-1423_20041208-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Carter G. Phillips

Justice Stevens: We'll now hear argument in the case of Muehler against Mena.

Mr. Phillips.

Mr. Phillips: Thank you, Justice Stevens, and may it please the Court:

At issue in this case is the safety of police officers when they attempt to execute a search warrant in an inherently unsafe situation.

Justice O'Connor: May I ask one preliminary question, Mr. Phillips?

Do we have before us here any question at all about qualified immunity?

Mr. Phillips: Well, we do believe that a qualified immunity issue is bound up with the underlying merits.

It was addressed that way by the Ninth Circuit because--

Justice O'Connor: But it wasn't... it wasn't in the questions--

Mr. Phillips: --This Court--

Justice O'Connor: --on which we granted cert?

Mr. Phillips: --This Court in Procunier treated the qualified immunity issue as part and parcel of the underlying merits of the case and... and, in fact, skipped over the question of what 1983 meant in order to address the qualified immunity issue.

And presumably--

Justice Breyer: How... how--

Mr. Phillips: --the Court could do the same thing here.

Justice Breyer: --How do we do it?

It goes right to the heart of this from you, the qualified immunity thing, for the reason that if you look at the facts and circumstances, it sounds to me like a somewhat close question as to whether the police did or did not exceed the reasonable bounds... reasonable bounds.

Now, if it's a close question, you have a jury verdict against you, and... and then I think, well, yes, but I begin to come... become disturbed if I think of qualified immunity.

I mean, it isn't that clear.

So... so having read through the thing, I... I preliminarily start by thinking, well, it could have been excessive force, I mean, given... you know, I'm using that in quotes.

Mr. Phillips: Right.

Justice Breyer: The jury said it was.

Who am I to say it wasn't--

Mr. Phillips: Well, I mean, this... this--

Justice Breyer: --in that situation?

But qualified immunity.

So now, what do I do?

Mr. Phillips: --Well, in the first instance, it's reasonably clear to me that you're not bound by the jury's determination here.

This Court has already--

Justice O'Connor: We... don't we have to give any weight at all to the jury finding there or--

Mr. Phillips: --With respect to the historical facts of the case, who did what to whom, of course, you have... that... that's subject to clearly erroneous review.

On the issue of whether or not the conduct at issue here is reasonable, that's an issue of law or at least a mixed issue of fact--

Justice Breyer: Well, a lot of it may depend on the--

Mr. Phillips: --and law that this Court has decided as de novo.

Justice Breyer: --on the music as to handcuffing and what did they say and what was the atmosphere and what was the garage really like and how risky was it that there be gang members in the outhouses and... and all kinds of stuff that you might sense from the testimony.

Mr. Phillips: It... it seems to me that... Justice Breyer, that the answer to all of those questions go to the core of what it means to exercise unquestioned command of the situation, which is a pure legal standard that this Court adopted a quarter of a century ago in Michigan v. Summers.

And that's a question of law.

To be sure, there are lots of elements of it, but what my position would be... and obviously the officers' position in this case... is that in exercising unquestioned command, you can accept all of the facts as you've just described them and none of that is excessive because it doesn't expose anyone to anything other than what is necessary in order to achieve complete control under the circumstances in order to ensure the protection of the individual officers and... and candidly of the other individuals who were being... being detained, all four of them, under these circumstances.

Justice O'Connor: --Have you responded to my initial question?

Have you said all you want to say about qualified immunity?

Mr. Phillips: No, Justice O'Connor.

My... my basic answer to that is that this Court already addressed that issue in Procunier.

It considered that the qualified immunity issue was part and parcel of the issue, even though it hadn't been presented in the question presented, and indeed, I think in this case it's actually a... a stronger argument that qualified immunity is in this case because that is the way that the Ninth Circuit specifically addressed the issue.

It looked at under Saucier.

It evaluated whether or not qualified immunity was appropriate and... and did the two-part test, the first part being whether it was a constitutional violation and the second part whether or not it was reasonable under these particular circumstances.

So if I... if I cannot persuade you that this is constitutional, which obviously I... I hope I can do, it seems to me absolutely unquestioned that there... that what the officers did here under these circumstances were perfectly reasonable.

Justice Ginsburg: Well, what is the... what is the function of a jury in this case?

What does the jury verdict stand for? And the jury doesn't return a special verdict and says we find X, Y, and Z.

It finds whether the police exercised excessive force, and that's all we know from the jury verdict.

Other... I think what you're saying is that these cases should go off on summary judgment or even a demurrer.

You assume all the facts as the plaintiff alleges them and then the Court decides whether that adds up to unreasonable within the meaning of the Fourth Amendment.

Mr. Phillips: I... I'm not saying that that would be true in all cases.

I do think in this particular case you did not need to have a jury verdict.

We would have been prepared to stipulate to the facts as they were found ultimately and... and giving the benefit of all of the inferences to the--

Justice Ginsburg: Well, we don't know the fact... what facts were found because all we have is in the jury verdict that this was excessive force.

Period.

That's all.

Mr. Phillips: --But that's just a conclusion of law, Justice Ginsburg.

So the... the facts that you know are the facts as they're described--

Justice Ginsburg: But it's like was--

Mr. Phillips: --by the respondent's brief.

Justice Ginsburg: --the defendant negligent.

Is that more or less a conclusion of law?

We don't know in what respect from the jury verdict.

And here, were these police officers acting... did they use excessive force.

Mr. Phillips: Well, we know precisely what they did.

They kept her in handcuffs throughout the duration of the... of the search.

We know that.

There's no... there are no additional claims as to having mistreated her physically.

Justice Stevens: Wasn't there a fact issue as to whether she was handcuffed for... even for a short period after the search had been completed?

Mr. Phillips: I don't think there is a factual question like that because I don't think that question was presented to the jury, and it was certainly not the basis on which the Ninth Circuit affirmed the jury's verdict in this case.

There... there was never an argument made to the jury that this... that this extended beyond the... the period of the end of the search.

The argument that was made to the jury was that the search should have... should have been limited to the room where the suspect was... was a resident or that the police should have made a decision somewhere in the... before the end of the 2-hour search that she was no longer a threat to them.

And then they were arguing that... that it even went a little further in terms of the timing of it.

But they never asked the jury to find that that 15 minutes was the basis for a Fourth Amendment violation in its own right.

Justice Stevens: But if... but if it made a difference as a matter of law, what... what should we assume about that extra 15 minutes?

Do we assume that they found the facts in the way that the... a plaintiff argues them or that you think they are?

Mr. Phillips: I think if the jury had been asked to make that finding, that you... and... and the jury determined that there... that it was unreasonable, then I think you'd have to conclude that the 15 minutes were, in fact... that it did, in fact, go beyond 15 minutes.

I do think there is still a legal issue as to whether that's de minimis under the circumstances.

But... but I agree.

I mean, obviously there is a role for the jury's findings, and you have to give them a certain amount of respect.

But on the core questions of reasonableness and suspicion and whether or not the police exercised unquestioned command and what those terms mean, this Court has already decided that in the Fourth Amendment context it has to decide those issues as a matter of law to regulate the conduct of all police officers and not simply do it on the basis of whatever a particular jury would say in a particular circumstance.

Justice Souter: Now, in doing it as a matter of law here, should we give consideration to the fact that in this case, if... if I remember correctly, one of the officers testified that had they followed normal protocol, once they had, I think his phrase was, secured the building, the... the main building--

Mr. Phillips: Well, the... all of the grounds actually.

Justice Souter: --Is that the whole compound?

Mr. Phillips: Yes.

Justice Souter: That... that they would have... they would have taken off the immediate restraints, and he wasn't sure why they didn't.

We... do we... do we consider that when we're crafting our statement of law as... as to what is or is not excessive?

Mr. Phillips: I think if this Court could determine that, as a matter of course, the... the standard operating procedures in a particular way, that might certainly inform the Court's Fourth Amendment analysis.

That... I think what's important to keep in mind in this context, though, Justice Souter, is we're talking about four individuals who are being detained under these circumstances, and each of them poses a distinct issue for the police officers under the... under... when trying to decide how best to proceed.

One of them had been found with marijuana in his possession.

One of them had been determined to be an illegal alien, and the other two were individuals about whom the police knew virtually nothing.

So, you know, is it possible that police procedure, generally speaking, when you're talking about a single occupant of the residence, oftentimes concludes that he can take away... you can remove the handcuffs?

That may be, although I don't think there's much in the record here to... to reflect that.

But what the police said here... and I think it's extraordinarily important.

Officer Muehler testified that if something had gone wrong, if either a police officer had been injured or one of the occupants of that house had been shot or otherwise harmed as a... in the context of executing the search warrant, the first question that would have been asked is what was the least that could have been done to prevent those injuries from occurring.

And he said to himself and he said it quite rightly... and it's a rule this Court ought to embrace under the unquestioned command theory of... of law... is that if we keep them in handcuffs through the duration of a reasonable search, we will make our way through the search much more rapidly, much more efficiently in order to minimize the detention and we will eliminate... and I mean, literally eliminate... the entirety of the risk either to the individuals themselves, the occupants, the detainees, or to the police under these circumstances.

Justice Souter: Okay.

I take it you obviously don't want us to... to come down with a kind of a finicky version of... of excessive force as the touchstone, and I take it you don't want us to come down with simply a blanket rule saying that essentially the police can do anything in... in restraining occupants so long as it is not wantonly cruel.

Somewhere in between.

Do you have a... a statement that would be the kernel of the holding that you want?

Mr. Phillips: I'm... I'm quite comfortable with the way the Court analyzed it in Michigan v. Summers, that the officer is not required to evaluate the extent of the intrusion to be imposed by the seizure.

That is, you... you have a categorical rule that allows you, in the ordinary course, to do whatever is reasonably necessary in order to--

Justice Ginsburg: But in the facts there, there were no handcuffs.

He... he was just detained.

So--

Mr. Phillips: --I understand that, and... but my... my position is that handcuffs don't materially affect the detention under these circumstances other than to assure what the Court said, which is unquestioned command of the situation.

Justice Souter: So... I mean, I don't... would... would you say handcuffs are per se lawful for... for purposes of applying Summers?

Mr. Phillips: Yes, but it's important to put that in context because Summers is a narrow exception to the... not an exception.

It's a narrow circumstance under the Fourth Amendment.

You have to have a search warrant.

It has to be a validly issued search warrant so that we know that there has either been a crime that's likely to be taking place in the premises.

It only... it only extends to the residents, occupants of the house, and it's only when the search is for contraband, not just for any evidence.

So, for instance, when the police go the 60th time to Michael Jackson's estate to go try to find evidence of whatever is going on there, I don't think it's reasonable to go in and handcuff Michael Jackson and anybody else who happens to be on site.

Justice Scalia: Well, it doesn't... why is contraband magical?

Wouldn't... wouldn't your point be when... when the reason they're investigating gives cause to believe that there may be physical danger--

Mr. Phillips: Justice Scalia--

Justice Scalia: --from letting people wander around?

Mr. Phillips: --absolutely.

Justice Scalia: Which is the case with contraband, but would be the case for many other reasons as well.

Mr. Phillips: I think the important point here is that we're talking about guns.

These are gangs.

These are guns.

This is a circumstance that is inherently more dangerous than any other circumstance the police are likely to confront.

Justice Breyer: But would you be happy then with a holding that says just what you said?

We reaffirm Summers and... but Summers said special circumstances or possibly a prolonged detention might lead to a different conclusion in an unusual case.

And the only verdict part that I think we're concerned with here... it was not about four people.

It was one person, Iris Mena, and in respect to Iris Mena, the jury found that there was a violation of her... of her Fourth Amendment rights.

And as to her, you could have found... you said... I don't know if you misspoke.

You said it could be more than 15 minutes.

In looking at it, I was certain whether they kept her for 15 minutes more or more than 15 minutes more, maybe up to an hour or more beyond the time that the search ended and kept her in handcuffs, both after the time they had secured the place and also after the time the search ended.

Well, that would seem a basis for the jury's verdict and consistent with Summers.

Mr. Phillips: Well, it... it could have been a basis for the jury's verdict if they had, in fact, put the issue of whether or not they were detained--

Justice Stevens: But, Mr.... Mr.... but may I point out that the judge's instructions did put that issue to the jury at page 203.

A police officer is required to release an individual detained in connection with a lawful search as soon as the officer's right to conduct the search ends or the search itself is concluded, whichever is sooner.

Mr. Phillips: --Right.

That... I understand that, Justice Stevens, but the point we made in our reply brief is there's not a shred of evidence in this record and it was never argued to the jury that this search... that... that her detention lasted beyond the period of the search in this case.

Indeed, counsel for the police officers specifically said in his closing argument, there is no issue but that she was released at the time of the... that when... as soon as the search was... was ended, the... the warrant was executed.

Justice Stevens: I wonder why the judge gave this instruction then.

Mr. Phillips: Because... because what he's... well, you know, it's a reasonable instruction.

Justice Ginsburg: --And why... why there was... there was a special verdict of sorts, not a detailed one.

But the two questions, question 5 and question 6, on page 255 of the joint appendix--

Mr. Phillips: Yes.

Justice Ginsburg: --One question concerns whether the force was excessive, and the other one is, do you find that she was detained for a longer period than reasonable?

Those two questions... my first is a procedural question.

Did counsel for the defendants object to the jury getting... those two questions being submitted to the jury?

Mr. Phillips: No, Justice Ginsburg.

We didn't.

And... and--

Justice Ginsburg: Well, it seems to me that the judge is asking the jury in these questions, one is whether there was a... a detention, was force greater than was reasonable under the circumstances, and whether the duration was longer than reasonable under the circumstances.

Mr. Phillips: --Right.

Justice Ginsburg, you have to put that in context.

The argument of the plaintiff in this case was that the detention should have ended at either of two points: after they had completely cleared the area and made it safe, or alternatively, at some point after that when they had asked her questions and determined that she had no particular involvement with Mr. Romero.

Their argument was anything after that was unreasonable, and that's what the jury certainly found, was that that was the reasonable break point.

Our argument is that's not consistent with the notion of unquestioned command and... and is wrong as a matter of law.

And there is no evidence... no evidence.

There was no testimony that she was kept for a period beyond the execution of that search warrant.

It's very important to understand that.

Justice Scalia: And you're saying the... the mere fact it... it went to the jury, even went to the jury without your objecting to it, does not mean we have to listen to what the jury said.

Is that... is that--

Mr. Phillips: Right.

If it's wrong as a matter of law, that's... then that's absolutely right.

But there was no evidence in this case that they kept going.

The only thing he said was, he... he didn't remember.

That was... the question was put to the police officer.

Was she kept beyond there?

He said he didn't remember.

He wasn't even the police officer who was involved in it.

There's not a shred of evidence of that.

It's totally made up.

It wasn't their theory of the case in front of the jury.

I'd like to reserve the balance of my time.

Justice Stevens: You might save your time.

Yes.

Mr. Shanmugam.

Argument of Kannon K. Shanmugam

Mr. Shanmugam: Thank you, Justice Stevens, and may it please the Court:

When executing a search warrant to investigate a violent crime, officers may routinely use reasonable restraints on detained occupants in order to exercise unquestioned command over the situation and to facilitate the orderly completion of the search.

The Ninth Circuit erred in holding that the officers' use of handcuffs in this case violated the Fourth Amendment.

Under the standard for excessive force claims first articulated by this Court in Graham v. Connor, as informed by this Court's decision in Michigan v. Summers, the degree of force used here was not excessive.

The same considerations that justified the detention of the occupants in Summers, most notably, the paramount concern of ensuring the safety of the officers and the occupants themselves, will ordinarily justify the precautionary use of handcuffs during the detention.

Justice Ginsburg: Then this case should not have gone to the jury on the basis of what you said--

Mr. Shanmugam: We--

Justice Ginsburg: --because you... you just said that this... the handcuffs... the circumstances... the circumstances here were reasonable as a matter of law.

Mr. Shanmugam: --Justice Ginsburg, that's correct.

It is our view that as a matter of law, the officers would have been entitled to prevail on the constitutional issue with regard to excessive force.

And it's worth noting, I think, that the officers did move for summary judgment.

They also orally moved for judgment as a matter of law at the close of the evidence, and that motion was denied.

Now, we also believe that the jury, quite frankly, was given insufficient guidance on the excessive force issue, and to turn to the jury instruction cited by Justice Stevens at page 203, it's quite clear that the jury only received one very general instruction on Summers detentions.

Justice Kennedy: Well... well, has the... the objection to the instruction been preserved here?

Mr. Shanmugam: Perhaps an argument could be made that it's fairly included within the questions presented.

There was an objection made at trial and an objection made before the Ninth Circuit as well, but our fundamental position is that the jury was simply given insufficient guidance on the excessive force issue.

This instruction--

Justice Souter: But on the... on the question whether they preserved the issue, I... I took it, implicit in what you said a minute ago, that yes, they did not object to the submission of the question.

They did not object, in effect, to an instruction or giving of an instruction as such.

Mr. Shanmugam: --That's correct.

Justice Souter: But they... they had moved for judgment as a matter of law at the close of all the evidence, and that's enough to preserve the issue?

Mr. Shanmugam: I think that's true.

It is true that they didn't object to the specific special verdict set of questions.

I think they proposed slightly different language.

But ultimately I think our primary submission is that as a matter of law on these facts, no constitutional violation occurred.

Justice Scalia: When you... is your objection that the jury wasn't given enough guidance on excessive force, or is it that the... that the ultimate issue of excessive force is not a jury issue?

Mr. Shanmugam: We would concede, I think, Justice Scalia, that the issue should go to the jury where there are disputed issues of historical fact.

We would submit that there are no relevant--

Justice Scalia: Well, but is... is excessive force an issue of historical fact any more than... than unreasonable search or unreasonable seizure is an issue of historical fact?

Mr. Shanmugam: --Well, there are certain--

Justice Scalia: I mean, it's an historical fact how long you held the person, whether the person was in handcuffs, but the ultimate question was, you know, is this force excessive.

Is that any different from the question as... of was this seizure unreasonable?

If you submit the one to the jury, you may as well submit the other.

Mr. Shanmugam: --Justice Scalia, those facts may be disputed in a particular case.

We would submit that they really weren't disputed here, but there may actually be a dispute where the officers would say, yes, we used handcuffs and the--

Justice Scalia: So when--

Mr. Shanmugam: --or no we didn't use handcuffs.

Justice Scalia: --when you know all those facts, you're willing to send it to the jury to say, given all of these facts, it's up to you to decide whether unreasonable force was used or not.

Mr. Shanmugam: We believe that it is--

Justice Scalia: It's not a matter of law.

Mr. Shanmugam: --a mixed question of fact and law, and once the historical facts are established, it is essentially--

Justice Scalia: Why... why any more so... why any... any more so than... than whether it's an unreasonable seizure?

Mr. Shanmugam: --Well, we would submit that it is no different from the question whether officers had probable cause or reasonable suspicion on any given set of historical facts which this Court held in Ornelas was a question subject to de novo review, over your dissent, admittedly.

And we believe that the primary rationale for the rule in Ornelas also applies here, namely that officers do need to have a consistent set of substantive guidelines by which they can judge the validity of their conduct.

Justice Kennedy: Are... are you saying that the only basis on... on which the jury could have ruled for the homeowner here, the... the respondent, is that she was handcuffed for too long?

Mr. Shanmugam: We believe that that certainly is the primary issue that was at stake.

And in fact--

Justice Kennedy: Well, I think you have to say that.

Otherwise, we have to uphold the jury verdict, if we can assume that the jury might have thought, well, you know, the handcuffs... the police had a right to do that, but she was held too long, she was... they... they yelled at her, she was taken into a... a place that was uncomfortable, blah, blah, blah.

If... if that's true, then we have to sustain the jury verdict.

Mr. Shanmugam: --I think that the handcuffing was the key factor at trial, and I think that the best evidence of that, quite frankly, is that respondent in her proposed instructions referred only to handcuffing in her excessive force instruction.

Unfortunately, that's not part of the joint appendix.

It is part of the record.

Justice Kennedy: No, no.

But the instruction that was given... and one was read that's in the briefs... it seems to me a... a perfectly good instruction.

Mr. Shanmugam: I think that that's true, but I think that the instruction didn't really provide any guidance on excessive force specifically.

It was really an instruction with regard to the reasonableness of the detention more generally, rather than with regard to excessive force specifically.

It was not a Graham v. Connor type instruction.

Justice Kennedy: Well, then it seems to me it was the plaintiff's obligation to submit a clarifying instruction and to bring this... the denial of that instruction here.

Mr. Shanmugam: Well, there were objections to the instruction below, and all I can say is that perhaps an argument could be made... and perhaps Mr. Phillips will make the argument on rebuttal... that it is fairly included within the questions presented.

Justice Ginsburg: I don't know how you can... you can say that the only thing that was before the jury was the handcuff when the... there was evidence that she was treated very roughly in... in the first instance, she was woken from her sleep, she wasn't told that they were police, she thought they were robbers, and she feared for her life.

That doesn't drop out of the case and what the jury was asked to determine.

Mr. Shanmugam: Justice Ginsburg, it was the primary issue before the jury, and to be sure, there were other issues.

I think that the other relevant use of force was the initial detention at gunpoint, but... and those... and I would add that those are the two factors on which the Ninth Circuit relied in affirming the jury's verdict.

Our submission is that both with regard to the initial use of force and with regard to the continued use of force, the justifications of Graham v. Connor support the officers' use of force in both instances.

Justice Stevens: But... but may I just ask a sort of very basic question?

One of the instructions reads, a detention may be unreasonable if it... if it is unnecessarily painful, degrading, prolonged, or if it involves an undue invasion of privacy.

Now, are you telling us that you think the answer to that question is a question of law that the judge should provide rather than the jury?

Mr. Shanmugam: Assuming that that instruction is correct... and that might very well be a valid instruction--

Justice Stevens: Well, if you think was correct.

Mr. Shanmugam: --It may very well be a correct instruction--

Justice Stevens: All right.

Mr. Shanmugam: --with regard to a challenge to the manner of the detention itself.

In that instance, then the jury does have a certain amount of leeway, but I think even then the teaching of Ornelas--

Justice Stevens: Then it's not a question of law.

The answer to whether it was unnecessarily painful, degrading, prolonged, or involved undue invasion of privacy, is that a question of law or a question of fact to the jury?

Mr. Shanmugam: --It is a mixed question of law and fact, and the jury's job is--

Justice Stevens: It's a mixed question?

Mr. Shanmugam: --The jury's job is to... to resolve the underlying factual issues and then--

Justice Stevens: Well, I understand the historical fact, but I'm... I'm questioning you about the conclusions that you draw from the unreasonableness, degrading, and so forth.

Is that partly to be decided by the jury or entirely by the judge?

Mr. Shanmugam: --We believe that that actually is ultimately a judge issue in the same way that the issue of whether or not probable--

Justice Stevens: So this instruction should not have been given.

Mr. Shanmugam: --That's correct--

Justice Souter: I thought your position was that it... it may be submitted to the jury, but that it may be reviewed as a question of law simply because that's the way we are able to set standards for later cases.

Mr. Shanmugam: --I think that's exactly right, and I think that that is the teaching of Ornelas.

And it may very well be that a more specific instruction should have been given so as to make clear that the jury had specific issues of historical fact to resolve.

But ultimately we do believe that it's a question of law in the sense that it should be reviewed de novo for precisely the reasons given in Ornelas.

And if I could just say a couple words on the substantive issue of excessive force.

We believe that in cases involving violent crimes, officers should routinely be allowed to use handcuffs.

In this case, I would just add that there were several additional case-specific factors that justified the use of handcuffs.

In addition to the fact that this was a violent crime, the officers had reason to believe that at least one and possibly two members of a violent gang were living at the house.

In addition, the officers had previously visited the house on two occasions to investigate other violent crimes and had encountered resistance on at least one of those occasions.

And our fundamental problem with the Ninth Circuit's rule is that it seems to suggest that officers in the course of a detention should really stop and investigate whether or not each... each individual that they encounter poses a safety threat.

And we believe that that rule is as unworkable as it is unwise.

It would effectively divert officers from the primary task at hand and could perversely have the effect of prolonging rather than expediting the completion of the search.

And for that reason, we believe that the Ninth Circuit's rule, its substantive constitutional rule, was erroneous.

Justice Stevens: How long did it take them to find out whether the... these other dangerous people were there?

Mr. Shanmugam: To find out whether?

Justice Stevens: Whether the people they were afraid of were... were on the premises?

Mr. Shanmugam: Well, you know, I don't know that they ever actually made a... a determination other than that Mr. Romero was not on the premises.

I think they figured that out once they had actually identified each of the individuals, which was fairly early on in the detention.

Justice Stevens: Thank you.

Mr. Hoffman.

Argument of Paul L. Hoffman

Mr. Hoffman: Justice Stevens, and may it please the Court:

Let me start on the issue of... that Mr. Phillips said we made up.

Actually we didn't make it up.

The claim that Ms. Mena was detained past the time of the search was made throughout the case.

If you look at footnote 3 in the Ninth Circuit opinion in 2000, the issue of the length of the detention was a factual issue that precluded summary judgment.

Ms. Mena claimed that the detention lasted for 2 to 3 hours.

The officers claimed that it lasted 90 minutes.

But more than that, the... the jury... the... the special verdict asked the jury to find whether Ms. Mena had been kept for a longer time than reasonable, and in fact, in the closing argument, it was argued that Ms. Mena had been kept beyond the time that the search ended.

And not only is there not any... not only is there evidence in the record, there is overwhelming evidence in the record that Ms. Mena was kept for a period of time, at least 30 minutes, give or take, and possibly as long as an hour.

And this is not based on Ms. Mena's testimony.

Justice Kennedy: Do you find that the... that the... do you define the end of the search as before they started videotaping everything they had done?

Mr. Hoffman: Well, they were videotaping during the course of the search.

But if I can go through the facts which might clarify things.

Officer Muehler, who was the officer in overall charge of the... of the search, testified at trial that the search ended at 8:40 a.m. Officer Brill said a little bit later than that.

He tied... but there's a second video.

There are two videos.

The second video is from 8:50 to 8:57.

At the time that the second... the second video started at 8:50, Officer Brill testified that the search was over.

The... the evidence log... the last entry on the evidence log is 8:45 in terms of evidence being logged into the... into the case.

Officer Brill testified that Ms. Mena was kept for at least 10 or 15 minutes after the end of the second video and her handcuffs were not released until she was brought back around from the... the separate converted garage back into the house and--

Justice Ginsburg: Where... where is that testimony?

Mr. Hoffman: --The testimony... Officer Brill's testimony?

Is actually... they cite joint appendix number... on 75 where he says he doesn't recall.

On the next page, in joint appendix number 76, he's asked... they continue to ask the question.

And isn't it your memory that about 10 or 15 minutes after that, Iris Mena was released?

That would sound consistent.

And that's 10 or 15 minutes after 8:57.

In addition, Ms. Mena testified that she was kept between 2 or 3 hours, and that was actually consistent with prior testimony by the videographer herself, who testified in deposition and was impeached at trial, that it was 2 or 3 hours that the search lasted.

The... the point being... and if you take the distance between Officer Muehler's testimony and Officer Brill's testimony, Ms. Mena was... was kept in handcuffs at the end of a very long detention in handcuffs, for a period of approximately 27 to 33 minutes, if you don't even take Ms. Mena's testimony into account.

And one of the ironies of the case is that there's testimony that Mr. Romero, the actual target of the case, was released at 8:45 at the time the search ended.

And so while this--

Justice Ginsburg: But not from these premises.

Mr. Hoffman: --No.

But in fact, this was a... the search warrant was for two premises.

He was picked up at his mother's house.

And in fact, Officer Muehler had... was... was to radio the start of both searches, and so there was--

Justice Ginsburg: But the... the... I thought that this poorhouse, or whatever it was called... that the warrant covered weapons that were there.

Mr. Hoffman: --Yes.

Justice Ginsburg: That they were looking for weapons.

Mr. Hoffman: They were looking for a gun.

Justice Ginsburg: They were not looking for a gun at Romero's mother's house, were they?

Mr. Hoffman: Well, I think the--

Justice Ginsburg: Did they have a warrant, a search warrant?

Mr. Hoffman: --I think the warrant covered... I think they were looking for the gun wherever it was found, and... and the... I believe the warrant--

Justice Ginsburg: Well, this was a... this was a pretty extensive search warrant that they had.

Mr. Hoffman: --Yes.

Justice Ginsburg: Did they have something like that, the same kind of warrant for the--

Mr. Hoffman: Well, it's the same warrant I believe, Your Honor, in terms of... we don't have... there's not a lot of information in the record about--

Justice Ginsburg: --Well, wasn't... I thought that this warrant referred to a particular address, a particular house, not... not any house where one might find Romero.

Mr. Hoffman: --No, no, no.

It... it referred to the two houses, one on Cimmaron.

Justice Ginsburg: Well, was the other house his mother's house?

Mr. Hoffman: Yes.

The location number one is his mother's house, 2646 Cimmaron, and that's... and Officer Muehler and this team was in charge of both of these searches pursuant to the same warrant.

They had information that... the reason they did that is that they had information that... that he lived in this poorhouse, that he rented a room from the Menas at the poorhouse, and that he also visited his... his mother from time to time.

Justice Ginsburg: Then that would make it even more curious if the place where the dangerous man was wasn't searched extensively and... and the mother... nobody was put in handcuffs, and yet for this... they knew pretty soon that Romero wasn't on the premises.

Mr. Hoffman: Well, they knew right away.

Justice Ginsburg: Yes.

And that's, I guess, your... your point, that the place where the dangerous man was is not--

Mr. Hoffman: I think that that explains one of the reasons why the jury imposed punitive damages here because they... they knew that at 8:45, at the time that Officer Muehler said that the search was over and all the officers were out of the house and... and everything was done, that Mr. Romero was cited and released for marijuana possession.

And at the same time, from 8:45 until sometime after 9 o'clock, probably as long as 30, maybe longer, Iris Mena was sitting in a cold, damp, converted garage with her hands behind her back.

Justice Breyer: You might be able to keep your verdict, I... I think.

But I think the problem here is the Ninth Circuit... you go to the Ninth Circuit and you say, you know, there was excessive force here on anybody's definition for reasons that you say.

And... and the Ninth Circuit says, oh, it was a clear violation of the Constitution and we'll tell you why, and then they give some reasons.

And two of those reasons are, A, four and a half pages written the reason that this was unconstitutional is because they asked her questions about immigration status, which you... I don't think you even raised.

Maybe you did.

But anyway, that's... that's the bulk of the... of... of... that's the bulk of the analysis.

And... and these are the words that I think they're objecting to.

And by any standard of reasonableness, Mena was... the... the officers should have released her from the handcuffs when it became clear that she posed no immediate threat.

And that was long before the... the... because she wasn't a threat.

And that was long before the end of the search.

And what their point is on that is, you know, if that's the rule, that's going to interfere with our SWAT teams because they can't operate that way.

They... they can't evaluate the individual.

They put the individual... if there are guns and gangs and danger that she'll grab a gun, they put her in handcuffs, and they hold her there for the search for a couple of hours, then they release her.

Now, that's their argument.

So they're objecting not so much to... to the fact they have to pay $30,000... or they may object to that.

But they're... they're objecting to the holding of the Ninth Circuit, and if they're right on that, then I guess we have to send it back and say, do this over again, though I'll be sorry about that and maybe there is a way not to do it.

But... but I want to know your view of what I see as those two issues here, that the Ninth Circuit's analysis was wrong.

Mr. Hoffman: Yes.

I mean, first of all, I'd... I'd say that the... the Court could affirm the judgment in this case and the verdict in this case on the ground that we--

Justice Breyer: Yes, but then we can't really reach the issue.

That's a possibility.

I see that.

Mr. Hoffman: --And in fact... and I... I think that would be the appropriate thing to do.

Justice Breyer: Well, but then suppose that the reason that this case is here is because of the implications--

Mr. Hoffman: Right.

Justice Breyer: --of the Ninth Circuit's analysis--

Mr. Hoffman: Right.

Justice Breyer: --not necessarily the extra 30 minutes because I see your point on the extra 30 minutes.

Mr. Hoffman: I think... I think that there... I would divide my response to that, Justice Breyer, into two parts really.

On the questioning issue, I would just say that that... that was not an issue that was presented to the jury for its verdict as a separate Fourth Amendment violation.

It wasn't.

And we didn't argue it in the Ninth Circuit.

What we did... we did say in our... in our brief to the Ninth Circuit that she was questioned about her immigration status about an issue that was unrelated to... to Summers detention.

We did say that.

Justice Breyer: Well, we could say is their opinion... that's their opinion.

It's beside the point, et cetera.

Mr. Hoffman: Right.

So, I mean, I... I think on questioning, you know, we... we haven't been pushing that issue.

Justice Scalia: If... if two of the reasons that the Ninth Circuit gave are in our view incorrect, why wouldn't we reverse and remand for them to do it without... to make the judgment without taking those two factors into account?

Mr. Hoffman: Well, I think what... first of all, it's a separate alternative holding.

What they said is that there was a separate Fourth Amendment violation while they affirmed on the basis that we actually won on.

The jury found that she had been detained longer than was reasonable and with more force than was reasonable.

This is a jury verdict.

The Ninth Circuit affirmed that.

And we've argued in our brief that if the Court did something on questioning, it would really be issuing an advisory opinion in this... in this situation.

And, you know, we've... we've argued the point and we're prepared certainly to argue about the merits of that question because it's obviously an important question.

In our view, the questioning issue should be governed by the more traditional Terry kind of idea that you can't question when it goes beyond the scope of the limited purposes of the intrusion, but we also understand that that's contested.

Justice Kennedy: Well--

Justice Scalia: I don't--

Justice Kennedy: --well, it does seem to me that--

Justice Scalia: --Excuse me.

Justice Kennedy: --It... it does seem... seem to me that the Ninth Circuit's opinion is questionable on... on this key point of when she had to be released.

The officers should have released her when it became clear she posed no immediate threat and did not resist arrest.

Mr. Hoffman: Well--

Justice Kennedy: I think that is critical to its holding.

Mr. Hoffman: --Well--

Justice Kennedy: And that implies that they have a... a duty at the outset to determine whether... what her status is rather than to go around looking for guns and... and to secure the premises.

That's... that's one of my concerns with that.

Mr. Hoffman: --Well, I would have a different position on that.

First of all, I think that the judgment can actually be affirmed on the first ground regardless of this issue because it was a... a jury verdict and... and the damages were asked for either/or in terms of question 5 or 6.

Justice Kennedy: The... the first ground being?

Just an unreasonably long--

Mr. Hoffman: Detained beyond the... the length of the search.

And I think technically the judgment can be affirmed on that ground.

But with respect to the handcuffing, the position that we would say is that, first of all, you... you would have to view the facts in the light most favorable to the verdict.

Now, it's been... there's been a lot of questioning about what that means and what the jury's role is.

As we understand it, if Ornelas applies to this decision, which we assume the Court would do... and that is, that you would first have to take the light... all the facts in the light most favorable to the verdict, including the possibility that the... the jury rejected as being incredible the statements that the officers made in terms of justification, if there was evidence in the record to show that there was contradicting evidence, which there is in this record.

And so the facts that... that the other side has tried to argue are the facts on which you would make that constitutional decision are not the facts in the light most favorable to the verdict.

In the light most favorable to the verdict, there was... there was lots of planning.

There was a tactical plan in writing that the jury got to see, which said that the... the plan here was to go in and make the SWAT entry, to see if there were non-suspects there.

They would be patted down, identified, and released.

The jury was entitled not to believe the other side's claim that they didn't say when they were going to be released and believed that the plan was to release them as soon as it was ascertained that they did not have the connection in... in the situation.

And in fact, there's testimony from the officers that they knew that they weren't gang members and they knew that they weren't connected to the crime.

And they were completely cooperative, and they didn't resist arrest and they didn't flee.

And Iris Mena is 5 foot 1... 5 foot 2 inches, and the jury had a videotape of exactly how they looked.

The officers had a total plan.

They... they exercised their command of the situation from the beginning.

They cleared it.

They made sure it was safe.

They took people outside through the pouring rain, which actually they say there wasn't evidence about that.

Justice Ginsburg: --Medium... medium rain.

Mr. Hoffman: Well, actually at... at joint appendix number 183, Officer Allegra, who was one of the entry team, said it was pouring.

So... and in fact, the stipulation of facts said it was heavy.

So Iris Mena was being... was being demure when she talked about that.

You can even see the rain on the videotape.

And so they took her outside.

They took all of them outside.

They put them in this little room, which is not connected to the house.

They had one or two armed officers outside.

There was no place for them to go.

They couldn't interfere with the facilitation of the search because they were in this room.

They couldn't flee because there's only one way out, a door.

There were two armed guards there.

And... and if all they had to do was sit these four people, who were not connected to any gang activity, as to which they had no suspicion ever developed that they had any connection to Mr. Romero, who had already been arrested at his mom's house--

Justice Scalia: They can't have a flat rule that while you're conducting a search, you... you can restrain anybody that you find assuming the search is for a crime that... that involves violence.

Mr. Hoffman: --Well, I think that the--

Justice Scalia: I don't want to have to make that call all the time, you know.

Mr. Hoffman: --Well, but... but officers do make that call all the time.

They make it in the context of Terry stops.

They make it in the context of lots of Fourth Amendment issues.

In Summers... in Summers, the man was detained.

In many of the post-Summers cases, including many cited by the other side and the Government, handcuffing is not viewed as routine.

Handcuffing is viewed as something that substantially aggravates the nature of the seizure--

Justice Breyer: That's true.

It isn't routine in... I mean, here what sort of pushes the other way on this is this is a dangerous gang.

They have lots of weapons and they have previously gone to this house, which I gather... sometimes when I read it, I think it's like a warren of little rooms.

On the other hand, maybe it isn't.

I haven't seen the house.

There are a lot of buildings around, and they think a lot of people here... we don't know who's what, and we make a mistake in this and we're dead.

You know, I mean, so that's painting it the other way.

But where you have guns and... and houses and gangs and so forth, now that's why they say that it's reasonable in those circumstances to say, when we find someone in the house, we handcuff them through the search.

We might let them go earlier, but that's up to us and we don't want the courts second guessing us on that.

Now, what's... I'm painting it their way, and I'd like you to respond.

Mr. Hoffman: --I... I understand that.

I guess the... the problem with that is that that means that no matter who they find... and in this case is a good example of it.

They were worried that they might find the gang member who had a gun there, and that's what they were looking for.

Okay.

And so they used the SWAT team.

That seems perfectly reasonable that they would use a SWAT team the way they did.

And they went in and within literally 4 or 5 minutes, they had... this is a tiny, little house.

They had cleared the house.

They had figured out all the occupants.

They put them in a room completely under their control where they couldn't get away from anything.

They knew there were two 40-year-old people, a young hippie, and... and an 18-year-old girl that was 5 foot--

Justice Breyer: Did they search that room?

Mr. Hoffman: --Yes.

They searched that room.

So the room was searched before they went there.

They searched all the rooms.

They searched Ms. Mena's room and found absolutely nothing there.

And... and the testimony... and this goes to Justice Souter's question.

Justice Souter: Did they... did they search the individuals too to make sure--

Mr. Hoffman: Yes.

Justice Souter: --I assume they did.

Mr. Hoffman: Oh, yes.

They... they searched the individuals.

They... they... you know, they completely made sure that... that when they put them in that back room, there was nothing in the room.

There was nothing on the individuals.

There was nothing that... that could cause them danger.

And... and the jury, I think, was entitled to... to look at those facts and... and to hear the facts and to see the facts--

Justice O'Connor: How did the qualified immunity question get resolved here?

Mr. Hoffman: --Well, the--

Justice O'Connor: And what... what role did that play in all of this?

Mr. Hoffman: --Well, at the... at the district court level, the... the district court heard a rule 59.

But one of the things about this case is it was tried right around the time that Saucier v. Katz came out, and in the Ninth Circuit, there was a question about who got to decide qualified immunity.

This was June 2001 actually.

And so there was a rule 59 motion about whether the proper standard of qualified immunity had been applied.

The district judge, looking at the facts, found that there were facts to sustain the verdict, including evidence that Ms. Mena had been kept after the end of the search.

The district judge found that.

And then in... in the Ninth Circuit, of course, the Ninth Circuit's published opinion deals with qualified immunity on both of these issues.

And basically the... the qualified immunity... on the... on the over-detention claim, I think they've conceded that there just isn't any justification for... I mean, a de minimis exception doesn't extend to 30 minutes.

I mean, that... this Court has debated whether 15 or 20 is too long on a... on a Terry stop when there's actually reasonable suspicion.

Here, there's nothing to hold her.

With respect to the handcuffing issue--

Justice Scalia: Is it clear that it was 30?

Mr. Hoffman: --Well, I think in viewing the light most favorable to the verdict, I think the Court has to assume that... that the jury could have found an hour.

But what I'm saying is based on the officer's own testimony alone, viewed in the light most favorable to the verdict, it's at least 27 to 32.

And so you've got something that just could not possibly be considered de minimis under any kind of exception.

And... and that's why they fought it on the facts.

They haven't even made an argument on the law at any point in this.

And with respect to handcuffing, I think our position on the handcuffing is that Summers, first of all, doesn't deal with handcuffing.

And the other side has consistently tried to equate detention with restraint.

And I think what... what Summers indicated was that this Court was willing to allow people to be detained during the course of a search for three specific reasons.

And when balancing the nature of the intrusion against the justifications, this Court specifically said it was endorsing a limited intrusion, and that it wouldn't be very much different asking someone to sit around--

Justice Kennedy: --Doesn't that just go to the point that it's not clearly established at least?

Mr. Hoffman: --Well, no.

I... I don't think that is the case, Justice Kennedy, because in... in... Summers doesn't authorize what they did.

Graham certainly talks about having to justify force based on a... on a Fourth Amendment analysis.

And Franklin v. Foxworth, which is a Ninth Circuit case that happened before this case, the Court, first of all, used the... the analysis that we have argued is appropriate based on Summers and Graham to decide that a particular Summers detention was carried out in an unreasonable manner.

Justice Kennedy: Well, but that was ill individual, a single individual--

Mr. Hoffman: Well--

Justice Kennedy: --unclothed, et cetera--

Mr. Hoffman: --No.

I... I understand that the facts were more egregious, but the... the Court's analysis for a reasonable officer from a qualified immunity standpoint... for a reasonable officer reading that opinion, you draw at least three conclusions I think.

One is that the proper analysis to determine whether handcuffing or some additional form of restraint is... is allowed has to be decided under the kinds of justifications that Summers provides and under a Graham analysis when it comes to force.

And there's lots of cases that... that allow officers to do that.

Lots of lower court cases.

In fact, our view is all the lower court cases follow that kind of analysis and just come out differently depending on the facts and circumstances confronted.

The second thing, the... the point about the disabled person and the particular facts made that case particularly egregious, and the Ninth Circuit said those were additional factors, not the line.

The Ninth Circuit didn't say that the constitutional standard was particularly abusive or egregious.

It... it applied traditional Fourth Amendment analysis.

And finally and I think very important and not dealt with maybe in the briefs as much as it should be is that the Ninth Circuit in... in Franklin rejected a blanket handcuffing policy.

That's what the policy was in Portland.

The Portland police department had a policy that said you are to handcuff everybody until the search is over.

And the Ninth Circuit said you can't have that kind of policy because Summers and... and Graham require it to be individualized justification for that... for an additional intrusion beyond the limited intrusion that's allowed in Summers.

And in fact, in Summers, the Court went out of its way to say to compare with what the Court was allowing to what it... to... to the circumstances in Dunaway, to... to circumstances that start to look like an arrest.

And I don't know how much more intrusive you could be than what these officers did to Iris Mena, and I think that's one of the... the issues here.

If... if the--

Justice O'Connor: And what do we do if we think the Ninth Circuit was off base in... in whether Mena could be questioned about her immigration status?

Mr. Hoffman: --Well, I... I think that--

Justice O'Connor: That seemed to be an important part of the Ninth Circuit's rule.

Mr. Hoffman: --Well, it's certainly... it's certainly an alternative ground.

It's not... it doesn't affect, I think, our verdict.

And so I think what... I mean, I suppose the Court could dismiss that question as improvidently granted, could say to the court that it... that it should reverse that part of the ruling.

Justice O'Connor: It might be useful to say they were wrong in--

Mr. Hoffman: Well, that... you... you could say that.

I mean, I would... on the merits of the question, I... I would like to... if we were reaching that, I would argue that the Ninth Circuit... that... that there is... there should be a limit on questioning in a... in a Summers detention, and the Court should apply the kind of Terry analysis that the majority of the... the circuits apply.

Justice Kennedy: --What... what will do if we thought the Ninth Circuit was egregiously wrong on that and that its opinion was, to use the most polite word, disingenuous when it talked about a garage?

That... that was somewhat off-putting to me when it was a converted garage with a bed.

Mr. Hoffman: Well, I mean--

Justice Kennedy: I mean, I... I thought this woman was standing in... by some grease rack or something and she was--

Mr. Hoffman: --She wasn't standing by a grease rack, but she was made to sit initially by an open door because the door had basically been obliterated on a very cold, rainy February morning where she was very cold, and after... and had been taken through the... the pouring rain in bare feet and with only a T-shirt and was left there for at least 20 or so minutes without being given a coat or shoes.

And she was made to sit by there and she was very cold and uncomfortable.

And she did complain that the handcuffs were too tight and she complained that they were uncomfortable and could they be removed.

It's not a garage in... in the way that the vision of it, but also if you look at it, it's... and the... the jury did look at it because it had a videotape of this.

You could see that the... the occupants were made to be in a very uncomfortable situation that was unnecessary.

And that... that was clearly established law in the Ninth Circuit certainly under Franklin that the manner of a search that was unnecessarily prolonged or painful or an unnecessary invasion of privacy was clearly established law in the Ninth Circuit as of 1994.

I think in the Heitschmidt case, which is very similar in a lot of ways to our case, that came out after the search, but applied the same reasoning to a 1994 search.

You had the same kind of handcuffing of a non-suspect as to whom the... the officers didn't have that... that kind of... of suspicion.

And the Fifth Circuit found that that was a violation and denied qualified immunity to the officers.

So from our standpoint, on the issue of being detained past the time, I think it's just a clear case.

I think the other side has conceded that if... if there's this evidence in the record, which there is, the judgment has to be affirmed on that basis.

On... on the handcuffing issue, we believe the same principle has to apply because the facts have to be viewed in the light most favorable to the verdict, and when you view those facts, I... it... it is... no reasonable officer would believe you could do those things to Ms. Mena in these circumstances based on the law at the time.

And I think that it would be... what the... what the United States and... and what petitioners' counsel is asking for is really for a radical change of law themselves.

We're happy with Summers and Graham and the way that applies, and the... the jury instruction was based on... on Summers and Graham and on Franklin.

The language is taken directly from those cases.

And... and the... the jury in a case like this... qualified immunity obviously provides some protection for... for officers that when... when a reasonable officer wouldn't know these things.

But jury verdicts also play a crucial role in a civil rights case.

In this case, a jury of our community found that Iris Mena had been subjected to an abuse of... a specific abuse of authority in being held beyond the time of... of the search, even at a time when the prime target was... was free to go about his business with a citation, and was held in these painful handcuffs for a period of over 2 hours in circumstances where, in the totality of the circumstances, she was treated much more harshly than anything this Court, I think, contemplated in the Summers case.

And I think that officers know how to... officers know how to handle the Fourth Amendment issues involved in this case.

They don't need a special rule because that rule would end up meaning that when you go in and you don't find what you're afraid of, that everybody is still going to be subjected to this kind of serious intrusion on their individual liberty.

And so we would urge the Court not to go down this new path that the United States and the petitioners are asking and to affirm the judgment because it was based on clearly established principles that this Court and other courts around the country have... have established.

Thank you very much.

Justice Stevens: Thank you, Mr. Hoffman.

Mr. Phillips, you have about 3 and a half minutes.

Rebuttal of Carter G. Phillips

Mr. Phillips: Thank you, Justice Stevens.

I want to start with essentially the question that Justices Breyer and Kennedy raised, which is what do you do when you know that the Ninth Circuit is wrong, that the questioning here violated the Fourth Amendment, and what do you do when you know that the Ninth Circuit was wrong in saying that the officers have an affirmative duty in the middle of a Summers detention to make an assessment on an individualized basis as to the risks posed by any individual detainee.

Those are rulings that I submit to you are plainly erroneous and warrant reversal on that basis alone.

At that stage, if the respondent wants to argue to the Ninth Circuit that that 15 minutes is, in fact, proved by the facts of this case, that's fine, but understand, those issues were put to the Ninth Circuit, and the Ninth Circuit did not affirm on the alternative ground that there were 15 minutes here.

The Ninth Circuit expressly never... or didn't expressly but never said one word about a period of time after the search ended in this particular case, and that's not an accident because there is no testimony.

The officer said he didn't remember and when asked, well, would 10 to 15 minutes be consistent with your memory, well, of course, it would.

He didn't remember anything.

So there's nothing in that evidence, and there's no way... I have looked at that tape.

I ask you to look at that tape.

I guarantee you there's no way you can draw any inference as to at what point in this process she was released vis-a-vis the end of this particular... this particular search being executed.

Justice Breyer: So... so do we have the tape here?

Mr. Phillips: I assume you have the tape.

It's part of the record.

It should be in the clerk's office.

If you don't have it, I'd be more than happy to send you a copy.

The--

Justice Ginsburg: But there was no... there was no objection to that question going to the jury, was the duration unreasonable.

Mr. Phillips: --Of course not, Justice Ginsburg, because the issue before the jury was whether or not the... we had an affirmative duty to make an evaluation in the middle of the search as to whether or not she posed a... a threat.

That was--

Justice Ginsburg: But the jury--

Mr. Phillips: --their theory of the case, and that's what the Ninth Circuit said, is yes, we do have that affirmative obligation.

Justice Ginsburg: --But the jury answered the... just the general question, was the duration unreasonable, and the jury said yes.

Mr. Phillips: Not of the search.

Of her detention.

Justice Ginsburg: Yes.

Mr. Phillips: Yes, of her detention.

And that was based on the jury's determination that we had detained her beyond the period we had done the sweep.

Justice Ginsburg: So if the district court got it right and the Ninth Circuit wrote a poor opinion, why should we upset the judgment in the case?

In other words, if what we had here was a trial that was okay, a district judge that behaved... gave a proper charge, then the Ninth Circuit writes an opinion that doesn't seem to deal with what the district court and the jury decided.

Mr. Phillips: Well, the... the court of appeals' obligation here was to evaluate our argument that we should... we were entitled to judgment as a matter of law.

The court of appeals put forth what it regarded as the most legitimate bases on which to affirm the judgment in this case.

The fact that neither of those withstand serious scrutiny, Justice Ginsburg, seems to me to be a basis for reversing the Ninth Circuit and allowing the matter to go back at this point.

And... and that is exactly what this Court does in... you know, said it will do in Ornelas, that it is a de novo review.

Punitive damages, exactly like a punitive damages cases.

Juries make punitive damages determinations every day and every day courts of appeals and trial judges review those damages awards de novo because they... because the question is not just what are the historical facts... that you give deference to the jury on... but on the fundamental question of what is the rule of law that will govern the police officers in the execution of search warrants in circumstances like this.

They need protection, Your Honor.

Thank you.

Justice Stevens: Thank you, Mr. Phillips.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Illinois v. Caballes - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

Illinois v. Caballes

Media File:

03-923_20041110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Lisa Madigan

Justice Stevens: We will now hear argument in Illinois against Caballes.

General Madigan.

Ms Madigan: Thank you, Justice Stevens, and may it please the Court:

This Court has made clear on several occasions, including 21 years ago in Place and 4 years ago in Edmond, that a sniff by a drug-detection dog is not a Fourth Amendment search, and if something is neither a search nor a seizure, then it requires no Fourth Amendment justification.

Justice Souter: Well, we've held that it's certainly not a... a full-blown search.

It's not a search in the classic sense, but a Terry stop isn't an arrest in... in the classic sense either.

We... we have said that that is a kind of seizure.

Why do... I think your... your argument assumes that this for... for purposes of search analogies that something is either a... a full-dress search or it's not a search at all.

Why isn't there a... a possibility of... of a kind of middle ground searches just as there is on seizures?

Ms Madigan: Well, this Court made clear in Arizona v. Hicks that it did not want to go down the road of creating something known as a quasi-search so that courts and police officers would be in the position of trying to determine whether or not something was a search or not.

Justice Souter: Oh, I... I can... I can just imagine the problems, but I mean, what... I think what's... what the... what's bothering me about the case is that if we persist in... in saying that... that it's... that it's an either and or question with no question with no possible gradation, then I assume nothing prevents the police from taking the dogs through every municipal garage in the United States and I suppose there's nothing that prevents the police from taking the dogs up to any homeowner's door, ringing the bell, and seeing if the dog gets a sniff of something when the door is opened.

We're... we're opening rather a... a large vista for... for dog intrusions, and... and that's what's... that's what's bothering me.

Why... why should we... why should we open that vista if there is a possibility of a... of a middle ground that would prevent it?

Ms Madigan: Well, I would start with the reality that dog sniffs by their very nature, as this Court recognized in both Place and Edmond, are very unique both in terms of the manner in which the sniff is conducted, as well as the content of... of the information that the sniff reveals, so that a dog sniff is only going to be able to reveal the presence or absence of contraband.

And this Court has recognized that individuals have no privacy interest in the possession of contraband.

Justice Ginsburg: Does that imply that your answer is yes to the question?

If we say, as you urge, a dog sniff is not a search, then the police are free to parade up and down every street in the country with dogs sniffing car trunks.

Ms Madigan: Yes.

Because a sniff is not a search, a police officer would be able to take a narcotics-detection dog down the street with him or her.

I can tell you that because of the limited resources... and this is a point brought up in the Illinois Association of Chiefs of Police amicus brief... that that is not likely to occur.

In addition, I can also tell you that in the State of Illinois, the Illinois State police do not train their dogs nor do they use their dogs on people.

They only use them on objects.

But yes, in answer to both of your questions, because a dog sniff does not constitute a search, dogs could be used to walk down streets.

They could, hypothetically, be used in parking lots, and at times they are used in parking lots.

Justice Scalia: But they are used.

I mean, we don't have to make it up.

From cases we've had here, we know that they're used in places like bus depots to... to sniff luggage that... that passengers have carried through on... on buses.

Ms Madigan: Yes, they are.

Justice Scalia: And the republic seems to have survived.

Ms Madigan: I agree.

Justice Ginsburg: One could characterize those episodes under the, quote, special needs doctrine.

I mean, we are exposed to searches at airports that we would not put up with walking up and down an ordinary street.

So the dogs at the terminals one expects nowadays.

Justice Scalia: No.

These aren't sniffs for... for explosives.

These are sniffs for drugs and... and these... these are not buses that are coming in from France.

They're coming in from one American city to another.

And... and there's no more need in... in that case than there was in this case.

It was just a good... a good place to find criminals who were carrying unlawful drugs.

Ms Madigan: In the present case, Mr. Caballes was traveling from Las Vegas, Nevada apparently on his way to Chicago, Illinois.

He was pulled over for speeding.

Another officer overheard when Master Sergeant Gillette called in to dispatch that he effected--

Justice Stevens: May I interrupt, General Madigan?

Ms Madigan: --You may.

Justice Stevens: He was pulled over for speeding at 71 miles an hour in a 65 mile an hour zone on I-80.

Right?

Ms Madigan: Yes, that is correct, Justice Stevens.

Justice Stevens: Did they know in advance that he was someone to look for?

Because I don't imagine you arrest everybody on I-80 that goes 70 miles an hour.

I've done it many times myself.

[Laughter]

Justice Scalia: Inadvertently.

[Laughter]

Ms Madigan: We always like to have you in Illinois.

Obviously, the Illinois State Police have the ability to pull somebody over whether they're going 1 mile over the speed limit or 26 miles over the speed limit, but there is nothing in the record to indicate that they were looking for Mr. Caballes as he was traveling eastbound on I-80 towards Chicago.

Justice Stevens: Does the record tell us what time of day it was?

Ms Madigan: Yes.

It was approximately 5:10 p.m.--

Justice Stevens: Thank you.

Justice Kennedy: You... you answered one of the earlier questions about the possible intrusiveness of dogs everywhere by saying, well, you don't have a privacy interest in contraband, but that's never true.

You don't have a privacy interest in the murder victim's body, but you still have to have a warrant to go in and get it.

So that... that just doesn't work unless I missed something.

Ms Madigan: --You do not have a privacy interest in contraband, as this Court has recognized in the Jacobsen case.

Justice Kennedy: Yes, but you have a privacy interest in your person and in your place, and that's what we're talking about.

So that seems to me that that just doesn't help us.

Ms Madigan: Well, there is a distinction that's made in terms of Fourth Amendment protections that are given to homes and people versus cars.

Ever since the Carroll case, it has been recognized that a warrantless search of a car can be done if they found probable cause.

Justice Kennedy: But that's because of the nature of the place being searched not because of the nature of what you're searching for.

Ms Madigan: Correct.

Justice Scalia: Not necessarily.

Justice Kennedy: So it just can't be that... so the fact that you don't have a privacy interest in contraband, it doesn't seem to me... I... I don't think you need that argument.

Justice Scalia: I think you should use it.

[Laughter]

Ms Madigan: I... I plan on continuing to use it.

Justice Scalia: Why... why do you... are you sure that Kyllo, you know, the... the imaging case, would have come out the same way if the only thing... the only thing... that the imaging could pick out is not any of the other private activities in the home, but the only thing it could possibly discern is a dead body with a knife through the heart?

Are you sure the case would have come out the same way?

I'm not at all sure.

Ms Madigan: I would hope the case would come out differently than--

Justice O'Connor: Well, what--

Justice Kennedy: Do you have any authority for that other than Justice Scalia's speculation about how this--

[Laughter]

--how his Kyllo case might have been written?

Justice O'Connor: --What about a house and... and the use of a dog to sniff around a door access or a house just because the police think, you know, it's possible this is somebody growing marijuana in the basement or something?

Is that all right?

Ms Madigan: --I would argue that, yes, it is all right to walk a dog around a house, but then as Justice--

Justice O'Connor: How do you... how do you reconcile that with the heat sensor case then?

Ms Madigan: --The thermal imager that was used in the Kyllo case was able to reveal intimate details of the house.

A dog sniff is only going to reveal the presence or absence of contraband, and because of that, that's where we suddenly get into the tension between Kyllo and Place and--

Justice Stevens: What if the dogs get a little more sophisticated in the future and can also smell a certain kind of perfume, something like that?

Would then the whole analysis change?

Ms Madigan: --Well, then you would end up in a situation as to whether or not an officer had probable cause when a dog, in fact, alerted.

If he was alerting to the presence of perfume as opposed to narcotics, there--

Justice Stevens: And how would you know whether the... the dog... I don't think the dog alerts, as I'm alerting, for one reason or another.

He just alerts.

Ms Madigan: --Well, they're very well trained dogs.

In fact, in the State of Illinois, the dogs and their handlers go through 320 hours of training, and they're specifically trained to only alert to narcotics.

Justice Stevens: I just learned this morning that some very well trained dogs that are trained to alert for explosives will also alert for certain kinds of rubber in a tire.

They didn't realize that.

And I think it's entirely possible that dogs would... there will be false alerts by... by dogs because it's triggered by something that... that is not really anticipated.

Ms Madigan: One of the things that does take place during the training of these narcotics-detection dogs is to make sure that they are not alerting to things that are not narcotics or... I don't know exactly how the explosive training is conducted because we don't train our dogs in Illinois for explosives, but they purposely train them on narcotics not to alert to plastic wrap that is frequently the container used for narcotics, not--

Justice Stevens: So you would agree the analysis would be different if there could be an innocent cause of the alert as well as the contraband being the cause of the alert.

Ms Madigan: --It depends.

The analysis would be different if the dog was known to or had been trained to actually alert to the non-contraband.

Justice Scalia: Or if that happened a large percentage of the time.

I mean, surely you'd concede that the search is unreasonable if, for every... every one time, you... you make somebody open his bag because the dog actually smells narcotics, 99 times you make somebody open his bag because he has apples in it.

I mean, wouldn't that go to the reasonableness of--

Ms Madigan: Well, it would actually go to whether or not that dog provided... that dog's alert provided probable cause to conduct a search.

Justice Kennedy: Well, do we... we don't have the probable cause question before us, do we?

Ms Madigan: You do not have the probable cause question before you.

This dog was determined to be reliable by the trial court and the Illinois Appellate Court, and it was not part of the Illinois Supreme Court's decision.

Justice Breyer: What again in your view is the best distinction from Kyllo?

Ms Madigan: Two things.

One, the thermal imager used in Kyllo was able to reveal intimate details that individuals--

Justice O'Connor: Like what?

I thought it was just heat?

Justice Scalia: --Yes.

Ms Madigan: --There was some disagreement on the Court about exactly what it revealed, but in terms of intimate details, it then allowed somebody--

Justice O'Connor: Excuse me.

What details?

It is a device that measures heat.

Ms Madigan: --Because it could measure heat, it could also potentially determine when somebody was taking a bath, taking a sauna, and doing other intimate things in the house.

Justice Ginsburg: I think there was a reference to my lady's bath in the opinion.

Justice Scalia: A nice turn of phrase, as I recall.

[Laughter]

Justice Breyer: What was... and what was the second?

Ms Madigan: The second one would be the distinction between houses and cars and the protections that houses are given under the Fourth Amendment, which are far greater than the protections that people have in their cars.

Justice Kennedy: Well, so you think if this were a house, that the Kyllo case would apply?

Ms Madigan: If this were a house in the situation, it would certainly bring out the tension between Kyllo and Place--

Justice Scalia: Wasn't there... didn't Kyllo... wasn't what... what the Court was worried about in Kyllo not just the relatively crude heat imaging that existed in the case before it, but the prospect of more and more sophisticated heat imaging which... which we had evidence was already in development that would enable you to see people moving around a room?

I thought the case referred to that.

Now, are we going to have more and more... what's going to happen with dogs?

I... I can't imagine that... that this thing is going anywhere other than smelling narcotics and smelling bombs.

Justice Stevens: Well, but you would argue that the same rationale should apply if, instead of using dogs, you had some sophisticated device that would buzz or ring a bell or something whenever the odor of... of narcotics was present, wouldn't you?

Ms Madigan: --I would argue that.

So if there was an ability to create a... a mechanical dog, for instance, we would again say that the use of a mechanical dog sniff would not be a search and therefore would not--

Justice Stevens: There's nothing magical about the fact that it's an animal rather than a sophisticated device.

It has better detection capacity than a human being does.

That's the only difference.

Ms Madigan: --You are correct.

Justice Souter: In... in discussing the... the answer to the... the Kyllo issue, you... you place an emphasis on the protection given to a house.

Would you go back to Justice O'Connor's question and my earlier example?

Is it still your answer that the police can walk dogs around the foundation of the house or take a dog to the front door and ring the bell and see what it... what it sniffs when the door is opened--

Ms Madigan: I would--

Justice Souter: --without there being a search and hence no Fourth Amendment concern?

Ms Madigan: --Yes, Justice Souter, I would say that that is possible because the sniff itself is not a search and it only reveals the presence or absence of contraband, which is something that the individual does not have privacy expectations--

Justice Souter: Okay.

But then... then the... then there is no significance in the house.

Ms Madigan: --There is potentially significance in the house because the--

Justice Souter: Well, when does... when does it occur?

I mean, if... if... first you say the... the house is... is a matter of significance for Kyllo analysis.

We're trying to draw a distinction, if there is one, between Kyllo and this, and you say they can go to the house.

They can sniff the foundations.

They can go to the front door, et cetera.

I don't see that the house, in fact, is functioning as a distinction at all.

Ms Madigan: --This Court's precedents have shown us that in fact Fourth Amendment protections are higher in the home than they are in the car.

Justice Souter: Oh, I realize that, but it seems to me your basic argument, if I understand it, is there is simply no search here, and because there is no search here, it doesn't matter whether you're dealing with a house or a parking lot or a car on the road.

No search is no search.

So for purposes of... if I... I want to understand your case, and as I understand it, for purposes of your case, there is no significance in the house because there doesn't have to be.

The question doesn't arise because there's no search.

Is that--

Ms Madigan: Justice Souter, that is absolutely correct.

A search, as far as we are concerned... and I believe it's based on the precedents of this Court... is a sniff is not a search, and therefore it requires no Fourth Amendment justification.

Justice Ginsburg: You said there's no disturbance of one's privacy and so that distinguishes the dog sniff from some other governmental intrusions.

But dogs can be frightening, humiliating.

It seems to me that there is some association with the idea that I have a right to be let alone by my government and having a large dog circle my car.

Ms Madigan: There are in this country millions of dogs, many of the types of dogs that are used by narcotics detection teams, such as Labrador retrievers and shepherds, are identical to the pets that people own.

We encounter them in the parks, on the streets, and I would contend that an officer cannot be in the position of making a determination as to whether or not the individual that he encounters is going to be frightened by the dog.

Mr. Justice Stevens, if I may, I'd like to reserve the remainder of my time.

Justice Stevens: Yes, you may save your time.

Ms Madigan: Thank you.

Justice Stevens: Mr. Wray.

Argument of Christopher A. Wray

Mr. Wray: Justice Stevens, and may it please the Court:

There's no dispute that respondent here was lawfully stopped based on probable cause.

There's also no dispute that the entire stop took less than 9 minutes.

The question is whether a second officer's use of a drug dog to sniff outside of that car during those 9 minutes required some separate Fourth Amendment justification.

Justice Scalia: Do you agree with... with General Madigan that it doesn't make any difference whether the... the dog is a... is a mechanical instrument or not?

Do you agree it makes no difference?

I thought that one of the... one of the points in... in the imaging case was that this was a new technology which didn't exist and that although the ordinary rules in 1791 was that there was no search unless... you know, unless you enter the house or unless you... you physically intrude upon the person's... at least the person's clothes, we made an exception to that rule because of this new technology that enabled you to find out things without having to intrude into the home or into the person.

Now, but... but this is not a new technology.

This is a dog and... and they had that ability in 1791 just as they had it today.

And the rule that when there's no intrusion, there's no search... there's no reason to depart from that rule with respect to a dog although there would be with respect to some sophisticated new technology that would enable you to find out all sorts of things.

Mr. Wray: That's correct.

Justice Scalia: It seems to me you shouldn't... you shouldn't assume that... that the fact that this is a canine makes no difference.

Justice Stevens: Are you going to rely on the fact that dogs were trained to do this sort of thing back in the 18th century?

Mr. Wray: I'm going to rely on... on three distinctions between this case and Kyllo, Justice Stevens.

The first is that the three points that the Court looked at in Kyllo were: one, as has already been referenced, the fact that it's a home, the most sacred place under the Fourth Amendment; second, that it revealed certain intimate details; and third, that that was a technology--

Justice Stevens: It was potentially revealed.

It did not actually reveal any details.

Mr. Wray: --As... as General Madigan referenced, there is obviously some disagreement within the Court on that issue, but the... the fact was that the technology in Kyllo revealed information about heat in the house which could be thought to reveal intimate details about the house.

The third point in Kyllo, which I think Justice Scalia is referring to, is that that was technology that was not in general public use.

Dogs have been used by law enforcement across the country since Place and before to sniff everything from--

Justice Stevens: But not in 1790.

Mr. Wray: --Not--

Justice Kennedy: Did you come here--

Justice Scalia: You don't know that, do you?

Justice Kennedy: --Did you come here having researched all about dogs in 1790?

[Laughter]

Mr. Wray: --Justice Kennedy, I cannot, I regret to say, tell you what dogs were doing in 1790.

I can tell you... and this is maybe a factual thing that might be of interest to the Court... that the dogs who train... who are trained to alert to detect things... it's not that they are sniffing things that all dogs can't already smell.

It's rather that they are trained to let the handler know that they've smelt whatever it is they've been trained to smell.

So the smells that are coming out of Respondent Caballes' car are exposed to every dog.

Justice Stevens: But do you really think this would be a different case if the officer had a device that did exactly what the dog... dog did?

Mr. Wray: We... our position would still be, Justice Stevens, that as long as the device only revealed, as this does--

Justice Stevens: I would think you'd take--

Mr. Wray: --the absence or presence of contraband, it would still be constitutional.

Justice Souter: Why do you rely on the... in... in distinguishing Kyllo, why do you rely on the house if there's no search?

Why do you have to rely on the fact that there was a house involved there?

You... you listed that as one of your three distinctions.

Mr. Wray: We don't believe we have to rely on it, Justice Souter.

We do believe that there were three things that were important in Kyllo.

The fact that it was a home was one of those things.

Again, the... the fact of a home, the fact that it was technology not in general public use, and--

Justice Scalia: But that didn't go to whether it was a search or seizure.

I think it goes to whether it was an unreasonable search or seizure.

Don't you think so?

That what... what might be unreasonable with respect to a home would not be unreasonable with respect to a suitcase?

Mr. Wray: --Yes, Justice Scalia, that's correct.

Justice Souter: But... but your... is... is it... I understand it to be your position that there simply is no search here.

Period.

Mr. Wray: That is correct, Justice Souter.

Justice Souter: Because it's a dog sniff.

Mr. Wray: We would... we would submit this is not a search because, as this Court recognized in both Place and Edmond... and the Jacobsen case is also significant because the Court said that the reason this is not a search, there using the dog sniff by analogy, is because it compromises no legitimate privacy interest.

The language of the Court in Place is significant because it says that we are aware of no other investigative procedure that is so limited in both the manner in which the information is obtained and in the content of the information revealed.

That language goes not only to why it's not a Fourth Amendment search but why the use of the dog sniff during a probable cause traffic stop here, where it doesn't prolong the duration, does not transform an otherwise lawful seizure into an unlawful one.

Justice Souter: All right.

Do you... do you think it's... it's reasonable to say that if the police take dogs simply onto private property to sniff the foundations of houses, if they take dogs to the front door and ring the bell so that they hope the door will open, that there is... there is no compromise of a privacy interest?

Mr. Wray: Well, there would be a question as to whether the officer, the human officer, that is, could be on private property... I take it from your hypothetical, Justice Souter... in the first place.

But--

Justice Souter: Well, I mean, the Fourth Amendment analysis after Katz doesn't... doesn't depend on trespass, and... and you have said up to this point that there is no search.

And then you have quite rightly said that we have had as a consideration in our minds analytically whether it's fair to say that what the police were doing involved any compromise of a privacy interest.

So I'm assuming... I'm assuming that the police can at least get to the foundation with a dog and they can certainly walk up to the front door and ring the bell.

And if they do that with a dog, for the purpose of letting the dog sniff and alert, if there's anything to alert to, is it fair to say that there is no compromise of the privacy interests of the people who own the house?

Mr. Wray: --Our position would be... the answer to that question is yes.

The Court does not have to resolve that issue to decide this case.

Justice Scalia: Of course, we could separate the home from the... from what happened here and still validate the search here if we held that it was a search, but was a reasonable one since all you find is that the person was carrying contraband.

It's the only thing that's disclosed.

Whereas, if you... if you did the same thing with... with regard to a house, which is a more sacrosanct part of one's privacy, it might be an unreasonable search.

We... we could reach that result if we wanted to, couldn't we?

Mr. Wray: I think you could, Justice Scalia.

It's important to distinguish--

Justice O'Connor: On the other hand, if it were a drug-selling neighborhood or around a park where drugs are frequently sold, would it be legitimate in your view for the police to take drug-sniffing dogs and walk around the public street where cars are parked around that known drug-selling area and see if they could sniff out some contraband in the cars?

Is that okay?

Mr. Wray: --We believe it would be okay, Justice O'Connor.

It would be important not to use the dogs in a way to constitute a new seizure because in that case, you're not talking--

Justice O'Connor: I'm... I'm assuming parked cars.

You haven't interrupted anybody.

Nobody is in the car, parked on a public street.

Mr. Wray: --In that instance, we believe that would be acceptable under the Fourth Amendment.

Justice Kennedy: So you... you give no significance to the fact that this dog sniff was in the course of a lawful stop where the citizen's rights had already been curtailed to a significant extent?

Mr. Wray: We believe, Justice Kennedy, that the... that that context here makes this an even easier case under the Fourth Amendment, that is, the dog sniff not being a search compromising no legitimate privacy interests during the course of a lawful probable cause stop, which we know from Atwater... the officer could have simply placed the woman under full custodial arrest and taken her down to jail... was not an activity that transformed the seizure into an unlawful one.

The Illinois Supreme Court's concern and where we think they got off track was that they were concerned that the use of the dog sniff during this 9-minute traffic stop was that it transformed it... it used the language that it transformed the sniff into a drug investigation.

We would submit that the Fourth Amendment is about the reasonableness of searches and seizures and not about what the scope of the government's investigation is.

And in that sense, the court got off track.

These... this is a... this is a means that law enforcement has been using properly in reliance on this Court's decision in Place, reinforced just 4 years ago in Edmond, for more than 21 years to detect everything from drugs to bombs to smuggled... we have beagles in the airports that smuggle produce that's being smuggled in.

Dogs are used all over the country with great effectiveness in law enforcement, and the... we... that is a... a technique that we want to encourage law enforcement to pursue.

Justice Ginsburg: Are there... are there any manuals for law enforcement officers with respect to the time and place of using dogs, or it's just open season?

Mr. Wray: Justice Ginsburg, there is extensive training of law enforcement to use dogs.

It's a multi-week program that requires--

Justice Ginsburg: I don't mean the training to make the dog alert properly.

How the police will use them, when, under what circumstances.

Mr. Wray: --Justice Ginsburg, each agency has different policies about when they use dogs and what purpose they're trained for.

In this case, as you heard, they're being used in the context of highway interdiction, and so they're trained to sniff around vehicles specifically.

Justice Stevens: --Thank you, Mr. Wray.

Mr. Wray: Thank you.

Justice Stevens: Mr. Meczyk.

Argument of Ralph E. Meczyk

Mr. Meczyk: Justice Stevens, and may it please the Court:

The State does not offer any Fourth Amendment justification whatsoever in regards to... in this case.

It argues instead that there... there was no need for any justification, and that is incorrect for two reasons.

The dog sniff in this case invaded a Fourth Amendment interest of Mr. Caballes in the context of a routine traffic search.

The sniff in this case was, in fact, a search.

Albeit it was a limited intrusion, it was still a search nonetheless.

Justice Scalia: Why... why do you say that?

I mean, is... is anything that I observe a search?

I mean, suppose I... I'm a policeman and... and I'm looking out for, I don't know, people with a nervous tic because I think that that might be somebody who's about to commit a crime or has committed a crime.

Have I searched that person because I... I observe something external?

Mr. Meczyk: Any observation I think--

Justice Scalia: Is there no difference between an investigation and a search?

Mr. Meczyk: --There is in this case... see if I understand you correctly.

Justice Scalia: No.

It seems to me your brief and... and your statement here both seem to assume that there's a search whenever the police investigate.

Mr. Meczyk: Well--

Justice Scalia: But that's not so.

They... one can investigate without searching.

Mr. Meczyk: --Well, to... see if I understand your question correctly.

If you're looking with someone with that nervous tic, that would be something in open view or plain view.

That's not the type of investigation I'm talking about.

There is in fact, most respectfully, an investigation technique here.

There's an investigation measure.

Justice Breyer: Yes, but that isn't the--

Justice Kennedy: What about a policeman who smells marijuana coming out of a car or a residence.

He's walking down the street, public street, and he smells marijuana.

Mr. Meczyk: The only way I can analogize that, Justice Kennedy, is that it... that is akin to a plain smell or plain view.

Justice Breyer: --All right.

So once you say that, you realize that there are billions and billions of searches that go on every day that the police don't have to justify at all.

They just look around.

Mr. Meczyk: I don't--

Justice Breyer: Okay?

There are billions of them.

So the real question is do they have to give a justification for this.

And the argument that they don't is simply that it's not in the person's house.

When you go out in a public place, even in your car, you might run into people or animals with sharp noses.

And a lot of them can detect marijuana.

And you know, maybe it's a Limburger cheese.

I don't know.

[Laughter]

But people are sniffing things that they don't sniff through windows into your house, but they do get odors in your car on the street.

So this is the kind of search.

Yes, it's a search, but one that the police don't have to justify.

Mr. Meczyk: --But this is with a specific investigative tool.

Justice Breyer: Well, it's a specific investigative tool when I put on my glasses to look through a window.

Mr. Meczyk: Well, this is--

Justice Breyer: I don't see why it has to... why that matters if in fact all... if you go into a car, a police car, and you have... drive through the neighborhood and look around, you are using a specific investigative tool, the police car, to look around and find out what's going on.

Mr. Meczyk: --This is a far more... most respectfully, this is a far more sophisticated investigative tool.

Justice Breyer: What I'm trying to get to is in my own mind it's not a question of the tools.

It's a question of the expectation of privacy.

Mr. Meczyk: Then maybe I can see if I could answer your question.

Mr. Caballes in this case indeed had an expectation of privacy.

When he was asked by the police officer in this case if he can consent to the search, he said no.

He did not want that law enforcement officer looking in--

Justice Kennedy: But that never--

Justice O'Connor: Yes, but both Place and Edmond, opinions from this Court, said sniffs are not searches.

Mr. Meczyk: --Well, I--

Justice O'Connor: Do you want us to reverse that?

Mr. Meczyk: --Justice O'Connor, I do not... I do not want you to reverse Place.

Place, no pun intended--

Justice O'Connor: Well, and Edmond also said it's not a search.

Mr. Meczyk: --Well, there were--

Justice O'Connor: It was the stop of the cars in that case that caused the result.

Mr. Meczyk: --The way I understand Place it was contextually limited.

In Place, the whole purpose of the seizure, the taking of the luggage, was to submit it to a drug-detection sniff.

That is the opinion authored by Your Honor, that specifically stated... I'm not going to say took for granted, but it specifically stated that the... the context... and that's what we have to look at Place... the--

Justice O'Connor: Well, fine.

We had a context there where we supported it, but in the process said the sniff, the dog sniff, was not a search.

Mr. Meczyk: --Well, I... I--

Justice O'Connor: So you want us to say something else here.

Mr. Meczyk: --Well, I think that first in... in that case, in Place, the... the Court--

Justice O'Connor: The context here was a legitimate traffic stop.

Mr. Meczyk: --But it was... unlike Place, the legitimate traffic stop here was completely unrelated to the purpose of the dog sniff.

There was an absolute--

Justice O'Connor: The dog sniff is not a search.

What difference does it make?

Mr. Meczyk: --Well, again, I would again respectfully assert that the dog sniff is a search and the way Place was decided, first, the decision had to be made, in the context of... of that case, what was worse.

What were they going to do with the luggage?

Were they going to open the luggage first?

So, of course, the Court had to decide in that case that it wasn't that kind of a... a search.

It wasn't as egregious a search as actually opening the luggage.

Then you--

Justice O'Connor: This... the trunk of the car didn't have to be opened here.

Mr. Meczyk: --I'm sorry, Your Honor.

Justice O'Connor: The trunk of the vehicle did not have to be opened here.

You're talking about a dog sniffing on the exterior of the vehicle that was legitimately stopped for a traffic violation.

Mr. Meczyk: Again, in this context, unlike in Place, there was absolutely no relationship between the... the dog sniff and the dog sniff of Caballes' trunk and the sniff of the luggage that was placed at LaGuardia Airport in Place.

There's a great distinction.

Moreover--

Justice Scalia: Suppose a policeman follows me around.

He just... just follows me around, observing with his... with plain eyes.

Now, is that a search?

Does he need probable cause to do that?

Now, he's wasting his time and he's wasting public money and maybe he should get fired for doing it, if he has no reason to follow me.

Mr. Meczyk: --It's not a search.

Justice Scalia: And maybe... maybe I'd have a harassment action against him if he does it, you know, blatantly.

But is that a search?

Mr. Meczyk: It is not a search.

If he follows you--

Justice Scalia: Okay.

So... so the mere fact that one is in investigating something doesn't make it a search.

What does make it a search?

Mr. Meczyk: --Well--

Justice Scalia: The fact that you find out something?

Mr. Meczyk: --I think here the most distinctive point here is that Caballes had already been stopped unlike the hypothetical that you just presented to me.

Caballes was already stopped for one... for probable cause.

There's no question about that.

But then now the police launch into a wholly unrelated investigation that's--

Justice Scalia: You think it would be better if he hadn't been stopped?

If... if they just... just randomly walked up to somebody who was going through a toll booth and had the dog sniff the car, you think that would be a better case--

Mr. Meczyk: --I think--

Justice Scalia: --for allowing it than... than yours?

Mr. Meczyk: --Even in that case, even in a hypothetical where they used the dog for a toll booth, I have a problem with that.

That to me is a search.

It's different than... I would assert it's different than if they walked... one of the hypotheticals that the Justices asked my adversary in this case, when they asked, well, what if they walked the dog instead around a... parked cars or parked cars at a stadium?

It depends for what purpose they want to walk those parked... that dog around those parked cars.

My assertion is--

Justice Ginsburg: Well, they said it's to find out if there's any contraband.

Mr. Meczyk: --I'm sorry, Your Honor.

Justice Ginsburg: The answer was they are at liberty... the police are at liberty to use dogs to find contraband.

And your... Illinois I think was very candid with the Court in saying we have taken from your decisions that a dog sniff is not a search.

So anything else is a matter of police policy.

It had nothing to do with the Fourth Amendment.

Mr. Meczyk: Well, I... I strongly differ.

I have to look at the purpose that they are going to use the dog for.

This Court--

Justice O'Connor: Well, does it matter if, for instance, in today's world on Capitol Hill we're concerned about terrorist attacks.

What if the dog is trained to alert to explosives?

Now, can the police just decide they're going to sniff any car that's parked on Capitol Hill?

Mr. Meczyk: --Justice O'Connor, it depends on the purpose.

Justice O'Connor: Yes or no, in your view.

The purpose is to disclose potential explosives in a parked vehicle.

Mr. Meczyk: The answer is yes.

I have no problem whatsoever.

Justice O'Connor: Wherever it is.

Mr. Meczyk: Wherever it is because I look at it as a public safety exception.

And this Court in the Edmond case specifically condemned a general search... a general crime... let me use the exact words.

General interest in crime control, to quote the Edmond case.

And that's--

Justice Breyer: I still want to go back to my question because I think you may have an answer to it and I want to focus you--

Mr. Meczyk: --I'm struggling, yes.

Justice Breyer: --I want to focus you on the question.

I think what you're doing, which is a reasonable thing to do, but it isn't my approach, look to the English definition of search.

I say forget that.

Let's look to the Fourth Amendment because there are a whole range of searches that don't even fall within the Fourth Amendment in the sense that we don't need a justification.

And I take Place as saying that dog sniffs is one of those, whether it does or doesn't use the word English search.

So I want to know why it is that this dog search is one of the ones that's a Fourth Amendment search, i.e., one of the ones that requires a justification in terms of what the Fourth Amendment is about, privacy.

Mr. Meczyk: It invades a public... I'm sorry.

It invades a private space that in this particular case the respondent Caballes had a privacy interest in, that he wanted to exclude the whole world from going inside his trunk.

That's the difference.

Justice Stevens: Yes, but you don't respond to one point in Place, if I remember correctly.

It must be a legitimate expectation of privacy, and if the only thing the dog can detect is something illegitimate, how can you say there's an invasion of a legitimate expectation in privacy?

Mr. Meczyk: Well, it is... it's true that one does not have an expectation of privacy in contraband, but by the same token, I have an expectation or Mr. Caballes had an expectation of... of privacy of what's inside that closed trunk, his car.

The Carroll doctrine is still good law.

We still apply the Fourth Amendment in cars.

It's true that the home is sacrosanct, but just because it's a home, it's not a talisman where... where the Fourth Amendment no longer applies.

Justice Ginsburg: There was something you said in... in your brief that I thought was unclear.

So may I ask you--

Mr. Meczyk: Of course.

Justice Ginsburg: --if Officer Gillette, the one who did the arrest for speeding, had a dog in the back of his car, instead of having the second officer come with the dog, would it have been permissible?

I thought you had conceded that it would be a different situation if the dog was already there when the car stopped.

Mr. Meczyk: First of all, Justice Ginsburg, my recollection is that Trooper Gillette, who was the officer who stopped Caballes, did not have a... a dog in the car.

Justice Ginsburg: No, he didn't, but I'm asking you to imagine that he did.

Mr. Meczyk: I see.

If he had a dog in the car and the dog just happened to have alerted without his cuing the dog or walking the dog... and I'll answer that in a moment too... that would be pure serendipity.

That might happen.

If... if the dog just happened to have alerted.

But if the troopers deliberately drove the car close by... and in reality, that's not what happens.

Justice Ginsburg: No.

I would like to take this scenario as it is except that when the officer gets out of the car, his dog comes with him.

Mr. Meczyk: Okay.

Justice Ginsburg: This is very... make no other changes except that Gillette has the dog and Gillette with the dog go to Mr. Caballes' car.

Mr. Meczyk: My understanding of the way this works, Justice Ginsburg, is that he just couldn't go up to the car without... and the dog would alert.

My understanding of the way these dogs are trained is that they specifically... that the officer has to walk the dog around the car, the vehicle, first of all.

Justice Scalia: He does that.

He does that.

Mr. Meczyk: He does that.

Justice Scalia: Yes, in this case.

Mr. Meczyk: He does that.

Justice Scalia: Right.

Mr. Meczyk: To cue the dog.

In other words, tell him it's not playtime anymore, that he has to work.

Justice Scalia: Right.

Mr. Meczyk: To trigger something in the... in the canine brain.

Justice Scalia: Right.

Justice Ginsburg: But you... I'm--

Justice Scalia: Would it be bad?

Would it be bad if that's what he did?

Mr. Meczyk: It wouldn't be bad that's what... well, yes.

In this case it's very bad because it's a search.

There's no question.

I'm not coming off of that.

Justice Ginsburg: --But I'm... I'm trying to understand what you meant in your brief when you said if the dog had been in Gillette's car when Gillette stopped Caballes, the situation would have been different.

Mr. Meczyk: I... I think what I meant there... there would have been... it would have been purely happenstance, almost like plain view.

It would have been... without him even cuing the dog or starting to walk the dog around, my answer to that Justice Ginsburg is that that would have been all right.

Except now that... the more I think about it, I'm not so sure that it would be all right.

And my answer to... and the reason for that is I think in that case the officer, if he could do such a thing and the dog would alert, would be exploiting the situation, would just be taking the dog and walking him around the car and seeing that the dog alerted.

So in other words, there... there would be, I think, an exploitation of... of the... of the traffic stop.

Justice Ginsburg: So then it really makes no difference whether it was Gillette who had the dog in his car or whether the dispatcher called another officer who had the dog.

Mr. Meczyk: That is correct, Your Honor.

Justice Ginsburg: It doesn't... so you're retracting that.

You, I think, were asked but I'm... I'm not sure you fully answered.

Suppose the police, as Atwater would allow, arrested, made a full arrest of Caballes, and then they impound his car.

In the place where they put it, couldn't they have a dog go around the car there?

Mr. Meczyk: Yes.

Yes.

I... if we had an Atwater situation... in this case there wasn't an Atwater situation because there was first a warning given.

You're correct.

There was a warning given.

I'm sorry.

The officer Gillette told Caballes he was going to give him a warning.

So unlike the Knowles--

Justice Ginsburg: But he could have.

He could have.

I mean--

Mr. Meczyk: --He could have, but he didn't.

Justice Ginsburg: --is... is--

Mr. Meczyk: He didn't.

Instead, he chose to treat this as more of a Knowles situation.

This case is... is on all fours, no pun intended, like Knowles.

In other words, in the... in Knowles v. Iowa, the Court... a case of this... I'm sorry.

Let me untwist my tongue.

In Knowles v. Iowa, you had a... you had a traffic stop and after the traffic stop, there was a statute that said unrelated to the traffic stop, you can go in and search.

And this is the same thing.

This officer here Gillette treated Caballes as the officer in Knowles in... treated Mr. Knowles in Iowa.

It's the exact same thing.

Justice Souter: No, but the... the difficulty that I have with that argument is take the... take the case of... of the arrestable offense in which it is undoubtedly the case that although the police don't normally arrest, they... they can.

Your... if I understand your argument, you're saying if they, in fact, do arrest, they may then take the dog around the car, and indeed, I presume you would agree, they could make an inventory search because they've got to protect themselves against claims that they lost property and so on.

So there's no question that in that case, as... as you have argued it, they could make a full-blown search and... and certainly can use the dog.

But if they choose not to arrest on the highway, they can't.

My problem is how can you say that there is a reasonable expectation of privacy in case number two if you admit that the police can search in case number one.

How does that affect the reasonable expectation of privacy?

Mr. Meczyk: To me, once a person is told that he is not going to be under arrest, it changes the whole complexion of the case.

I think it's a completely different... a completely different scenario.

We don't have an arrest.

It doesn't matter.

Atwater--

Justice Ginsburg: --Could the officer change his mind?

I mean, he... he did say I'm just going to give you a citation, and then he said, mind if I search your car.

This is before the... the dog showed up.

And suppose the person who had been speeding said, yes, I mind.

Don't search my car.

And then the police said, well, in that case I'm going to arrest you.

Mr. Meczyk: --It's a difficult question, but I have to look at what... I think reasonableness is judged.

Again, I'm going to remember what the... those cases taught.

I think what Knowles taught, that reasonableness is judged by what the police actually do as opposed to what they might have done.

Justice Scalia: Mr. Meczyk, I assume that your answer to whether it's lawful to have a... a dog at a bus depot just to sniff the bags of people who were coming off, without stopping them, but just... just to have the dogs there, that's unlawful.

Mr. Meczyk: It depends--

Justice Scalia: For narcotics, not for bombs, not for... just... just for narcotics.

The police think, you know, a lot of narcotics goes on interstate buses.

We're going to put a dog in the bus depot.

Mr. Meczyk: --It's a little less problematic to me, Justice Scalia, than the type of stop I'm talking about here.

Justice Scalia: Why?

Mr. Meczyk: It's a little less problematic.

One, because it's a public place and I... I think--

Justice Scalia: Well, so is the road, for Pete's sake.

Mr. Meczyk: --I know, but... but here I think there's a lesser expectation of privacy.

Well, I don't even want to go that far.

I... I have to answer your question.

I think that submitting the dogs without any... submitting the luggage without any reasonable articulable suspicion--

Justice Scalia: Right.

Mr. Meczyk: --unlike the case--

Justice Scalia: Right.

Mr. Meczyk: --unlike the case in... in Place, that that to me is still a search.

So--

Justice Scalia: Okay.

That's... that's what I think you should say.

Mr. Meczyk: --And I am saying it.

Justice Breyer: Yes, but that isn't... I take it you don't--

Mr. Meczyk: Sorry it took me so long.

Justice Breyer: --Is there anything wrong with the policeman himself taking a sniff?

Mr. Meczyk: It goes back to--

Justice Breyer: It's the great Limburger cheese robbery.

[Laughter]

He stopped the car and he walks around.

Anything wrong with that?

Mr. Meczyk: --There's nothing wrong if he can detect Limburger cheese.

That to me is like plain smell.

Justice Breyer: All right.

Mr. Meczyk: As awful as that--

Justice Breyer: So plain--

Mr. Meczyk: --As awful as it might be--

Justice Breyer: --All right.

So... so what you're saying is... and this must tie back to reasonable expectation of privacy.

All right?

Because it's okay for the policeman to do it, and it's okay for dogs to do it in the bus station, and it's okay to use a dog not in the bus station with a car if in fact you actually are going to put him under arrest, although here you had probable cause to do so, I take it.

And now you have to draw a pretty fine line.

But it's not okay where it's not the bus station, but it is the car and in fact the dog is doing the sniffing... and there are a lot of dogs around that can sniff... and you did have probable cause but you didn't say it.

And in face of Justice O'Connor's case which said that... you see.

Well, I mean, this is... this is--

Mr. Meczyk: --I guess you--

Justice Breyer: --I mean, I'm not saying you couldn't draw that line, but I'm saying it's pretty tough I think.

Mr. Meczyk: --I guess you're telling me I'm... I'm the underdog in this case.

Justice Breyer: Well, I don't know.

[Laughter]

I'm right?

Am I... I mean, that--

Mr. Meczyk: It is--

Justice Breyer: --And you're going to draw the... well, I don't want you to repeat yourself necessarily.

Mr. Meczyk: --No.

It--

Justice Ginsburg: But you had already drawn the line at a different place than Justice Breyer suggested because in response to Justice Scalia, you said if it... if it were going into the bus terminal just to sniff for narcotics, unlike explosives, it would be an impermissible search.

Mr. Meczyk: --Yes, correct, Justice--

Justice Ginsburg: That would be--

Mr. Meczyk: --That is correct, Justice Ginsburg.

What makes this particular so--

Justice Souter: But... but is... why... why don't you simply say, look... have a very simple line.

If they can arrest, they can sniff.

If they can't arrest, they can't sniff without individualized suspicion going to drugs or whatever.

Mr. Meczyk: --I would agree with that if I use an... if... if you're referring to an Atwater type scenario.

If they have probable... if they decide to arrest, even though it's on a minor traffic case, such as Atwater, which was a seat belt, as long as it's... if... if it's minor and if the officer elects to choose to do a full-blown arrest, then all the consequences that follow from that arrest are... it's going to happen.

Excuse me.

It's going to happen.

Justice Souter: But what... what is the answer to the reasonable expectation to privacy question in that case?

Isn't your expectation of privacy identical, whatever it may be, or isn't the reasonable expectation of privacy identical, whatever that may be, without regard to the discretionary decision of the officer to arrest or not?

Mr. Meczyk: I... I think that when the officer does a full-blown arrest, as was envisioned in Atwater, you know that you... the person knows that he or she does not have a reasonable expectation of privacy.

Justice Souter: But you're saying that the... the reasonable expectation of privacy depends upon the officer's discretionary judgment whether or not to arrest.

Isn't that what you're saying?

Mr. Meczyk: Essentially yes, because I think that the officer takes a physical action.

It's just more than words.

It's also his deeds.

I think in Atwater, unlike Knowles... in Atwater, in that case, I think the... the officer did make an election, and there was a full-blown or a full-fledged arrest.

And I think there your... your reasonable expectation to privacy does, in fact, go out the window.

But this is so different.

This was just a warning.

Period.

It was nothing worse than a warning.

What makes this stop so pernicious is that it takes place in front of the whole world and is accusatory.

It is profoundly embarrassing, and it is humiliating to everyone on the street.

So if a person is stopped and the officer just decides to stop you for a minor traffic offense, that's the worst part about this case.

Just a minor traffic offense, really a frivolous offense, basically what any law-abiding citizen would happen to... it could happen to anyone.

And as this Court has said, even in Whren, there are so many multiple technical violations of... of... technical violations--

Justice Scalia: I mean, I think it's worse if... if you're subjected to it without having committed any violation at all.

Every time I travel abroad and come back into the country, customs officers have dogs and... and they parade the dogs through... through the baggage terminal.

Do... do I feel offended by that?

Mr. Meczyk: --No, Justice Scalia--

Justice Scalia: This isn't a public safety matter.

They're... they're not smelling for bombs.

They're... they're smelling for contraband.

And according to you, that is bad.

Mr. Meczyk: --That... in that situation, when you enter the country... and this Court has said many times again... it's a border search.

There's nothing that I can argue against the border search.

It's the... or the functional equivalent of the border.

That is a border search.

I bring luggage to the airport, in today's world I have a lesser expectation of privacy.

If I know I'm traveling abroad and coming into the United States, that's different.

That's different in an airport.

Justice Scalia: Okay.

A bus station is different, though.

Mr. Meczyk: A bus station here inside the United States is different I think.

I... I look at your airport hypothetical as being... as dealing with a border.

If it's not at a border and I use your hypothetical, it's at O'Hare Airport or Reagan International Airport and they bring a dog up to sniff for drugs at the carousel, that to me is a search.

It's like... I think you said in one opinion once if it... you used the duck analogy, well, if it walks like a duck or quacks like a duck.

Here it's still a search.

It walks like a... a dog and it acts like a dog, but its specific function is in fact to search out in public and humiliate people.

If there are any further questions.

I respectfully ask this honorable Court to affirm the wise judgment of the Illinois Supreme Court.

Thank you.

Justice Stevens: Thank you, Mr. Meczyk.

General Madigan, you have I think about 3 minutes left.

Rebuttal of Lisa Madigan

Ms Madigan: Thank you, Justice Stevens.

Let me make three brief points.

Number one, Justice Ginsburg asked a question about something that was in the respondent's brief, whether or not it made a difference if a dog was with Master Sergeant Gillette when he initiated the stop or if the dog was later brought, as was the case here, by Trooper Graham.

Really what Mr. Caballes is arguing for here is an inadvertence requirement which this Court very clearly held in Horton, there is no such requirement of inadvertence.

And so a law officer, if they are at a lawful vantage point, do have the ability to detect incriminating facts.

That is not something that has to occur inadvertently.

It can happen intentionally.

Second, Justice Scalia asked a question about plain view, and similar to plain view, a dog sniff does not effect an incremental search or seizure.

And therefore, similar to plain view, a dog sniff does not require Fourth Amendment justification.

And let me finally acknowledge something that Justice Souter brought up, which is whether or not, by walking a dog around a house, you in fact would have a search.

Let me... now, that is certainly a closer case than whether walking a dog around a car constitutes a search, which we say is not.

But ultimately you would reach a similar result because the principle is not going to extend to cars in the same manner in... in Kyllo as the thermal imager did.

Finally, if there are no further questions, we would ask that the judgment of the Illinois Supreme Court be reversed.

Justice Stevens: Thank you, General Madigan.

The... the case is submitted.

Ms Madigan: Thank you.

Attribution:

The Oyez Project

Featured:

Devenpeck v. Alford - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

Devenpeck v. Alford

Media File:

03-710_20041108-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Maureen A. Hart

Justice Stevens: We'll hear argument in No. 03-710, Devenpeck against Alford.

Ms. Hart.

Mr. Hart: Justice Stevens, and may it please the Court:

The Ninth Circuit invalidated Mr. Alford's arrest and held the arresting officers in this case personally liable for damages based on the closely related offense doctrine.

The doctrine is contrary to fundamental Fourth Amendment principles that probable cause is an objective inquiry based on all of the facts and circumstances known to the officer at arrest.

In contrast, the closely related offense doctrine is a subject of inquiry that limits probable cause only to those facts and circumstances closely related to the offense that the arresting officer announces at arrest.

Under the doctrine, then if two officers observe precisely the same facts and circumstances and arrest the suspect, the arrest in one case can be valid and in the other invalid based only on the officer's subjective legal evaluation--

Justice O'Connor: Ms. Hart, is there any requirement in Washington or generally that an officer state the grounds for the arrest to the person being arrested at the time?

Mr. Hart: --Justice O'Connor, there's no constitutional requirement and there is no requirement in... in Washington that that be done.

A number of States do require that it be done statutorily and many of those States also--

Justice O'Connor: We're dealing here with a case from the State of Washington, and you assert there is no such requirement in Washington.

Mr. Hart: --There is not.

Justice O'Connor: But in this case when the respondent was arrested, he was informed by the officer that the arrest was for making a tape recording of the conversation?

Mr. Hart: That is correct.

Justice O'Connor: And it turns out... do you concede that that was, in fact, not a lawful grounds for arrest?

Mr. Hart: That... at this point, the question of the--

Justice O'Connor: Do you concede that--

Mr. Hart: --Your Honor--

Justice O'Connor: --that in the State of Washington, that it is perfectly lawful to record the conversation with the police?

Mr. Hart: --This... the facts of this particular case have not been before a... a court in Washington, Your Honor.

Justice O'Connor: But I'm asking you.

What is your view?

Is it lawful or not for an individual to record, tape record, the conversation with a policeman on the occasion of a stop?

Mr. Hart: Your Honor, I believe in this case there would be probable cause for an officer to believe it was and therefore effect an arrest.

I don't believe that the... the question has been answered in Washington, and I believe there are good grounds to argue that it would be permissible and that, indeed, unlike the decision in State v. Flora, there were distinguishing circumstances here, including the absence of passers-by on the scene.

Justice O'Connor: Well, do we decide this case on the understanding that it was lawful to make the recording?

Is that the basis in which we decide this case?

Mr. Hart: No, Your Honor.

We have not raised the Privacy Act as an issue before this Court.

Justice Kennedy: Well, for argument--

Justice O'Connor: Now, Washington also has an anti-stacking policy, does it?

Mr. Hart: The State Patrol does, Your Honor, yes.

Justice O'Connor: Is... is that just a rule of the patrolmen in the State?

Mr. Hart: It--

Justice O'Connor: They won't arrest someone for several charges?

Mr. Hart: --It's an agency policy and troopers with the Washington State Patrol are trained to it.

Justice Souter: Well, is it an agency policy that the State endorses, and if so, why... why do you endorse or adopt the policy?

Mr. Hart: Well, Your Honor, I believe that... that stacking charges really is... there are good reasons to endorse the policy.

One is that it's not a particular--

Justice Scalia: Not... not stacking charges you mean.

Mr. Hart: --I'm sorry.

Not stacking charges, Your Honor, is... is an... a sound policy for a number of reasons.

First, it's not a particularly effective or efficient use of law enforcement resources, but perhaps more importantly, it can have significant negative consequences for people who are subject to arrest in terms of their ability... the amount of bail, their ability to post bail, and to secure a pre-trial release.

Justice Souter: Well, is that... I mean, is that the... the real basis for the policy, that we... that Washington does not want to make it difficult for... for arrestees to raise bail?

Mr. Hart: Your Honor, I can't tell you precisely what the Washington State Patrol's thinking is on it.

My impression is that, in part, they believe that... that the appropriate law enforcement response is... is to determine whether there's probable cause and to arrest and leave the sorting out of the charges to be pressed actually by the State to the prosecuting attorney.

Justice Souter: What do you make of the argument that unless the cause of the arrest is, number one, stated and, number two, a... a cause that a defendant can rely on, that in any case like this in which the stated grounds of the arrest turn out to be... we will assume, turn out to be inadequate, the police will always, particularly in traffic cases, be able to come up with something later on to justify the arrest?

What... what do you make of that argument?

Mr. Hart: Well, I... I think what I would make of it, Justice Souter, is that provided that there's probable cause for arrest, that the fact that there may be a basis to... to stop a number of... of motorists is not... is not relevant.

And in part, I believe that, for example, this Court's decision in Whren indicates that so long as there is probable cause for arrest, the reason for the--

Justice Souter: But that was for an... an arrest in which, so far as we can tell, the... the stated grounds for the arrest were those for which there was probable cause.

And I think one of the concerns underlying the argument that I asked you to comment on is that if the... if the police, in effect, have... have discretion ad lib afterwards to come up with new grounds for the arrest, there's... there's going to be a kind of a basic corrosion in the integrity of the arrest process and in the confidence of people to believe that the police are really acting in good faith when they make an arrest.

Mr. Hart: --Well, Your Honor, the... if there is probable cause for arrest, that is the concern of the Fourth Amendment, and I... I don't believe that the... the concern... I don't know that there's any empirical evidence that the concern that you are expressing has been borne out.

Justice Souter: That... that may be... that may be the... the best response.

And I take it, so far as you know, there... there are no studies that have gone into this on an empirical basis.

Is that correct, so far as you know?

Mr. Hart: Not as... as far as I know, Your Honor.

But I would also suggest to you that the notion that an officer would effect an arrest without any basis for the arrest on a hope that a prosecuting attorney can come up with a basis for the arrest--

Justice Souter: No.

The... the argument is that he thinks he does have a ground.

It turns out that he's wrong.

Unless he is very unimaginative, he'll find another one.

It's not that he arrests saying I have no basis to arrest this person, but I'll think of something later.

It's... it's the... the problem is, I think... or the argument, I think, is directed to a case like this.

Mr. Hart: --Well, and... and Your Honor, I... I do believe that the concern of the Fourth Amendment, which is the only constitutional provision at issue in this case, is that there in fact be a reasonable basis for arrest and that subsequently or promptly subsequently or prior to arrest be tested by a neutral magistrate.

And that's the only concern.

Justice Scalia: Ms. Hart, I'm... I'm not sure what you mean by... that there has to be probable cause for arrest.

Do you mean objectively, or do you mean on the basis of the facts known to the arresting officer?

I mean, let's... let's assume an officer stops a car for a broken taillight, and it turns out the car doesn't have a broken taillight.

All right?

So that basis is wrong.

However, the car also has an expired inspection sticker, which the officer didn't know about.

Was there a probable cause for arrest, as you're using the term here?

Mr. Hart: If there was probable cause based on the... if there was reason based on the objective facts and circumstances--

Justice Scalia: And it doesn't matter whether he knew those facts and circumstances.

Mr. Hart: --that... known to the officer at arrest.

Justice Scalia: Oh, so it has to be known.

Mr. Hart: Yes.

Justice Scalia: So in my example, the arrest would be invalid because at the time of the arrest, he didn't know about the sticker.

Mr. Hart: Absent the circumstances at arrest giving rise to a reasonable basis to believe that a crime had been committed, there would not be probable cause.

Justice Scalia: So you're saying it's the facts known to the officer--

Mr. Hart: Precisely.

Justice Scalia: --that have to establish the probable--

Justice Ginsburg: That's--

Justice Scalia: --Once... once you establish that limitation, are you willing to accept the horrible that... that Justice Souter proposed to you?

Is it... is it, indeed, so easy to... to gin up some other cause for arrest when you used a mistaken cause?

I don't know that it's all that easy.

Mr. Hart: It is not and... and... it is not.

And that was the... the reason why I indicated in response to Justice Souter's question that I do believe that it is not all that easy.

And I... I believe that one of the foremost commentators in this area has termed that notion fanciful for the reason that it is... it is stopping on a hope and a prayer that something will provide justification for that later--

Justice Ginsburg: --That was LaFave.

You cited LaFave in your brief for that proposition.

Mr. Hart: --Yes.

Justice Ginsburg: You... you made the point, in answer to Justice O'Connor, that a police officer in Washington is not required to divulge on the spot the reason for the arrest.

What is the point at which the arrestee under Washington law is entitled to know the cause of the arrest?

Mr. Hart: At charging, Your Honor, there... there... the... the individual who has been arrested, as a matter of the Sixth Amendment, would be entitled to know the charges against him or her, and the officer is required, in a warrantless arrest, to appear before a neutral magistrate and have the probable cause for the arrest tested--

Justice Ginsburg: Is it... is it at the arraignment or the... at the earlier booking in the police station?

Mr. Hart: --I'm sorry.

I'm not following your question.

Justice Ginsburg: Is it... is it... is the time when the arrestee must told you are being arrested for X reason, is that when the arrestee appears before the magistrate or is it earlier when he's brought into the police station and he's booked?

The arrest is booked.

At which point?

Mr. Hart: Neither, Justice Ginsburg.

The arrestee would be entitled constitutionally to know the charge against him or her when criminal... a criminal prosecution is commenced by charging.

For the most part, that is done in Washington by an information or a charge filed by a prosecuting attorney.

Justice Stevens: You mean he could be held until a charge is filed without being told why he's being held?

Mr. Hart: Justice Stevens--

Justice Stevens: So that could be a week or 2.

Mr. Hart: --But it would be... he would be held in that case following a determination by a neutral magistrate that there are grounds to hold him.

And at that point--

Justice Scalia: Would the magistrate keep those grounds secret?

Mr. Hart: --They would not be secret, Your Honor, no.

Justice Scalia: Well, wouldn't the magistrate tell him why he's being held?

Mr. Hart: The magistrate would tell the... the arrestee why he's being held, provided the arrestee is present for that particular procedure.

Justice Stevens: And how soon is he entitled to appear before the magistrate?

Mr. Hart: I'm sorry?

Justice Stevens: How soon after his physical arrest does he have a right to appear before the magistrate?

Mr. Hart: My... my recollection under Washington's law would be... 72 hours is the time for the charge.

Justice Stevens: So for 72 hours, he could be held incommunicado without knowing why he was arrested.

Mr. Hart: But... but for that period, the arresting officer would have had to... during the 48-hour period at the outset, that this Court discussed in Riverside, the probable cause for the arrest would be tested by a neutral magistrate.

Justice Ginsburg: You also said that you thought this case is distinguishable on the legitimacy of taping the conversation with the police officer on the highway.

Why... why do you think this is distinguishable from the Washington Intermediate Appellate Court decision that the... that the... that Alford wanted to show to the police officer?

Mr. Hart: Well, first of all, again, Justice Ginsburg, the Privacy Act issue is not one that we have raised before this Court.

But... but the reason that I would suggest it is distinguishable is that in a subsequent case considered by the Washington State Supreme Court called State v. Clark, the court look at Flora, the Intermediate Appellate Court case, and... and termed it as a case that said you do not have a private conversation when it is open to passers-by.

And in Flora, there was another individual present at the scene and who was, in fact, subsequently arrested for interfering with the arrest in the Flora case.

So there is, all I'm suggesting, at least some grounds for distinguishing the Flora case for that reason.

Justice Ginsburg: Do you know if there's been any instruction in the State of Washington to police following that Flora decision about taping... about arresting people for taping conversations with police officers?

Mr. Hart: I do believe there has, Your Honor.

It's not a matter of record, however, in the... against arresting for that reason.

Justice Ginsburg: The flashing headlights which was... there was a citation.

There was an arrest for the tape recording and a citation for the flashing headlights.

Could there have been a... an arrest for the flashing headlights, or is that a lesser category of offense that's not an arrestable offense?

Mr. Hart: Under Washington law, the flashing headlights, the wig-wag lights, in and of themselves would not be an arrestable offense.

It would be a citable offense.

The impersonating offense involved in this case would be arrestable, and the wig-wag headlights would play a part in that, however.

Justice Ginsburg: But he was never... never charged with the impersonating an officer, only with the flashing headlights.

Is that right?

Mr. Hart: That's correct.

Justice Breyer: The... the case, as far as I'm thinking of it at the moment, comes down to everybody is agreeing... well, no.

It's... you go ahead because you want to reserve that probably.

Mr. Hart: Thank you, Your Honor.

Justice Stevens: Mr. Comey.

Argument of James B. Comey

Mr. Comey: Justice Stevens, and may it please the Court:

The validity of a police action under the Fourth Amendment turns upon an objective assessment of the facts viewed through the prism--

Justice Souter: Do the facts, on your view, have to be known to the officer?

Mr. Comey: --Yes, Your Honor.

Justice Souter: Is... is there... and correct me if I'm wrong.

In... in cases in which we're inquiring into probable cause for a warrantless search, we give the government credit for any fact known to any officer, don't we?

Mr. Comey: Yes, Your Honor.

Justice Souter: Why wouldn't we have the same rule?

Why shouldn't we have the same rule with respect to facts known to any officer when one officer makes an arrest?

Mr. Comey: I suspect, Your Honor, that the Government would urge such a rule if it were at issue in this case.

Justice Souter: But it's not urging it here.

Mr. Comey: Well, I don't see it at... at issue in this case, Your Honor.

Justice Souter: I don't think it is.

I just want to know where we're going.

Mr. Comey: That's... that's correct, Your Honor.

The... the Government's position, as with the State of Washington's position, is that the... the analysis is simply did the facts known to the officer, viewed through the prism of an objectively reasonable officer, establish probable cause.

And that to make an evaluation of the arrest turn upon the officer's subjective assessment of those facts... in other words, the working of his brain, the crunching of those facts that results in the spitting out of a legal conclusion... is contrary to this Court's precedent and guts the objective reasonable test, and would make, instead, the validity of a Fourth Amendment action turn upon whether the officer is particularly smart, whether he's new, whether he's nervous, whether he says nothing at all or whether he decides to say, you're under arrest for everything listed in the Washington code book.

Under those circumstances, the results would be different.

The... the concern that Your Honor raised about police officers engaging in a post hoc rationalization I respectfully suggest is not a concern that is rooted in reality because the facts continue to drive the analysis.

Whether or not a police officer is right at the arrest scene in invoking a particular statute, if that turns out to be incorrect, it is still the facts that were known to him that must support probable cause for some other offense.

Justice Souter: So far as you know, there... there are no empirical studies looking into this particular horrible?

Mr. Comey: No, I'm not aware of any, Your Honor.

I also suggest that if this were the concern that the Ninth Circuit were looking to address by the closely related offense doctrine, the remedy sweeps far too broadly in both directions.

It punishes officers who at the scene engage in remarkable good faith conduct.

I mean, these two police officers I think are what the public would hope these police officers were, looking at a code book at the roadside, calling a prosecutor late at night, trying to get it right.

They are punished under this doctrine.

Those that are rewarded are those who are smart enough, perhaps a veteran, perhaps someone who has read the Ninth Circuit's cases, to stay completely silent, to say nothing at all, knowing that he's going to be fine.

He needs to engage in no--

Justice O'Connor: Mr. Comey, I think you rely, in part at least, on this Court's case in Whren--

Mr. Comey: --Yes, Your Honor.

Justice O'Connor: --for the result for which you argue.

But in Whren, the stated reason for the stop, traffic enforcement, was lawful, and we didn't have to look any further.

In this case, the stated reason I think we assume, at least according to the trial judge's instruction to the jury, was unlawful.

Does that impair the reliance on Whren?

Mr. Comey: I don't believe it does, Your Honor.

I believe that what Whren teaches is that the subjective working of the police officer's mind, his motives, his intentions, his legal assessments, as in other cases, his legal assessment with respect to the extent of a consent to search, or the reason he's boarding a boat, is irrelevant, that that's for courts to do.

What matters is what came into an officer's brain, not what came out as a result of his working on it.

Because, as I said, that would make law enforcement far from evenhanded.

It would make it depend upon who the officer was at the roadside on any given night.

And those similarly situated would be treated very, very differently, depending upon what an officer chose to say.

And as I said, silence in a... in a jurisdiction that's governed by the closely related offense doctrine is the best course.

Justice Souter: But if... if we had gone the other way in Whren, we would still have the problem that we have in this case, wouldn't we?

Regardless of... of how an arrest would be justified, the issue here is are the grounds of justification limited to the reason and in most cases the stated reason for the arrest.

So we'd have this problem even if Whren had... had come out otherwise, wouldn't we?

Mr. Comey: I think we would still be discussing whether the subjective functioning of an officer's mind is relevant for Fourth Amendment purposes, which turns upon whether the action was reasonable in the case of an arrest--

Justice Souter: But the question here is the scope of the Fourth Amendment inquiry.

Can it take in probable cause for reasons other than the reason for the arrest or the stated reason for the arrest?

Can it consider other offenses, and we'd have that regardless of... of Whren, wouldn't we?

Mr. Comey: --I think we would, Your Honor, to the extent that Whren is about motives and this case is about something very closely related, still the inner working of an officer's mind, what legal conclusion he draws from facts.

Justice Ginsburg: Why is it subjective?

I mean, in... in Whren, the question was finding a hidden motive as distinguished from the motive that was written out.

Here, there's nothing subjective about what the officer charged this person with on the spot.

He told him.

There wasn't anything hidden in his mind.

He said, I'm arresting you for X reason, for tape recording.

And then they had a whole colloquy.

So what the... what the arrest was for is as objective as it can be.

Mr. Comey: I would suggest, Your Honor, that his speaking, his invocation of a particular code section is an objective manifestation of an essentially subjective process.

And that's illustrated by imagining three stops on that road that night, three Mr. Alfords, exact same facts.

In one, the officer is engaged in the process that he engaged in here.

In the other two, the officer chooses in the first to say nothing, and in the third, to say... hold up the code book and say what you did is in here.

Everything in here applies to you, wise guy.

Now get in the car.

In those two other circumstances, complete silence and the table of contents approach, we wouldn't be here.

These officers would not have been in litigation for 4 years.

That to me demonstrates that it is essentially subjective because it is driven not by the facts, what the defendant did, but by the nature of the police officer.

Is he clever?

Has he gone to law school at night?

Justice Stevens: But, of course, even in those examples, there could be a difference in what the police officer had actually observed.

He might not have seen the safety sticker or the taillight or whatever it is.

So you do have some inquiry into the mental processes of the officer in every case.

Mr. Comey: Yes, Your Honor.

And... and if... perhaps my distinction is... is too homely, but I would say that's about what comes into his mind, into the brain, his senses.

Did he see this taillight?

Did he see the sticker?

Not what comes out of his mouth as a result of the functioning of that brain, his legal brain.

The legal work is for the courts looking at an arrest that's been challenged through the prism of an objectively reasonable officer.

It does not depend, else Fourth Amendment seizures would be not reasonable, but would vary depending upon the skills of an individual officer from roadside to roadside.

And that is utterly inconsistent with this Court's precedent and would, in fact, gut the objective reasonableness test.

The Ninth Circuit's rule would lead to dramatically uneven law enforcement.

It would, indeed, lead to either stacking or silence, and there's plenty of good reason why an officer or a Federal agent, who are not required to say anything at arrest, might want to inform a defendant of a basis for his arrest and might want to uphold other bases for an arrest, to protect a witness, for example.

To drive police officers to the extremes is not in the public interest.

Justice Ginsburg: You... you predicted that this would be in practice very bad.

There are some jurisdictions that have the closely related test, are there not?

Mr. Comey: Yes, Your Honor.

The Ninth Circuit.

Justice Ginsburg: But the... outside the Ninth Circuit.

Mr. Comey: Yes, Your Honor.

I believe the Seventh Circuit as well and the First Circuit.

Justice Ginsburg: Do we know whether these horribles have occurred there, that the police are booking for everything?

Mr. Comey: I do not, Your Honor.

I... I know with Federal agents, Federal agents say nothing.

They're required to say nothing.

They simply bring a defendant in on a warrantless arrest, cuff him, leave him in the cellblock, and then the assistant U.S. attorneys take the matter before a magistrate.

So there is... and that's one of the things that demonstrates the unworkability of this test because there are plenty of jurisdictions, thousands of Federal agents, who are under no obligation to say anything.

And so it's hard to see how this test, even to the extent there were a concern about the evil or perceived evil of post hoc rationalization, which I suggest there isn't, this... how this test would be applied--

Justice Kennedy: In... in the Federal system, is the arrest based on what the officer knew and... and see... and saw at the time?

Mr. Comey: --Yes, Your Honor.

His perceptions, the... the facts known to the arresting officers.

Justice Kennedy: Suppose he had asked for a gun permit and he sees the gun permit, and he said, well, it's... that's okay.

You've got the permit, but I'm going to arrest you for reckless driving.

Then he finds out the driving charge is no good.

It can't stand.

But then they look at his wallet more carefully and they see the permit is expired.

What... what rule then?

At the police station, they... they see the permit is expired.

In other words, they find out a fact after... after they arrested him.

Mr. Comey: Well, I... I would suspect that any statements made or seizures made pursuant to the arrest, which was made on facts known to the officers, that did not include what was in his wallet would be in jeopardy.

That... you still might be able to prosecute him, but you'd have to work awful hard to save anything you got as a result of that arrest.

Justice Kennedy: So you would confine the rule to what the officer has seen at the time of the arrest.

Mr. Comey: Facts known to the officers, including facts known to officers with whom he or she is working.

Thank you, Your Honor.

Justice Stevens: Thank you, Mr. Comey.

Mr. Phillips.

Argument of R. Stuart Phillips

Mr. Comey: Justice Stevens, may it please the Court:

In essence, the closely related offense doctrine enforces the reasonableness clause by precluding officers from arresting someone for non-criminal conduct.

At its core, that's what this is about.

Mr. Alford was arrested for conduct that was not--

Justice O'Connor: Well, I thought at its core it was about this rule that the Ninth Circuit adopted about closely related offenses.

I thought at its core that's what we were concerned with.

Mr. Comey: --Well, Your Honor, the closely related offense doctrine itself is... it's in five circuits... six depending on how you count the cases.

But it's designed to... to look at two things: number one, whether the arrest itself is reasonable; and number two, from a qualified immunity standpoint, whether... essentially it's a no harm/no foul rule.

If the conduct for which the person was arrested is criminal, but the officer merely has a mistake in terminology... he calls it driving while license suspended instead of reckless driving... then it actually salvages the arrest for law enforcement.

Justice O'Connor: Well, what if the arresting officer just doesn't give a reason for the arrest, just makes the arrest, and it turns out, at the end of the day, that indeed there were objective facts that would have justified an arrest.

It wasn't what the officer had in mind but he didn't say anything.

What result then?

Mr. Comey: Your Honor, that... that implicates several other rights.

Number one, it is... while an officer could, in some jurisdictions, effectuate a warrantless arrest without stating a basis therefor--

Justice O'Connor: Well, could... could an arrest made under the circumstances I described be valid?

Mr. Comey: --I hate to say this, Your Honor, but it depends because at some point, for example, when the person is brought before the magistrate for the probable cause determination, they're not operating in a vacuum.

There will have to be--

Justice O'Connor: No.

At that time, there does.

But we're talking about at the time of arrest.

And it... it just... if the closely related offense doctrine has the effect of punishing an officer for explaining to the suspect a reason for the arrest, why is that a good doctrine?

I mean, if the officer could say nothing and could end up, at the end of the day, having a valid arrest, I just think the closely related doctrine doesn't serve a very good purpose.

Mr. Comey: --Your Honor, the... in this case, of course, that's... that's not the... that's not this case because the officer was very clear.

He said exactly what it was for, and then he... when he booked him, Officer Haner even booked him for illegal recording.

So in this case, we're... we're not presented with a vacuum.

But even in an instance where the officer did not state at the instant of the arrest why he was arresting the person, one of the benefits of this doctrine is that it would allow for an objective review of the facts in order to determine--

Justice O'Connor: Well, if the objective review shows that there were, indeed, facts that would have justified an arrest, then what's wrong with allowing that to proceed?

Mr. Comey: --Your Honor, the... the danger of that is that allowing this, as... as I termed it, a general right of arrest with... with no articulated basis at any point up until charging runs contrary to some of the basic principles--

Justice Kennedy: Okay.

What's... what's happening here is in order to avoid the down side of your test... as Justice O'Connor puts it, her point is that if we adopt your rule, there's going to be an incentive not to state the reason.

Now, in order to avoid that... you haven't really squarely confronted it... I think you're suggesting that there has to be an additional rule that the police officer must say why he's arrested, and... and the authorities just don't establish that.

Now, if you want us to go on and make up that rule, I suppose we could make up that rule.

Mr. Comey: --I'll be very happy if you--

Justice Kennedy: And I'm... I'm sure you'd be delighted.

But that's not the case we're confronted with.

And if the choice is between making up a new rule to make your test work or rejecting your test, it seems to me that the... that the latter might be the preferred course.

Mr. Comey: --Well, Your Honor, to sort of piggyback on what Justice Souter and what Justice Ginsburg had commented on, there's no empirical evidence to suggest that there is or would be a movement by police officers towards silence.

There is simply nothing out there that says that police officers have in the past in the six jurisdictions, the six circuits that use this.

There's no evidence that they have remained silent in an effort to--

Justice Scalia: Must... must be very stupid police officers.

I mean, it's... it's just obvious what... what you have to do to make a valid arrest.

If you say nothing, any... any basis that you could have had for the arrest will... will be used.

Whereas, if you... if you mention something, you better be able to substantiate that particular cause or a closely related crime.

Police officers aren't any dumber than the rest of us.

I can't believe that... that that wouldn't be the... the consequence of... of the rule you're asking us to adopt.

Mr. Comey: --Your Honor--

Justice Scalia: To put it this way, it seems to me the burden should be on you to... to tell us why a police... police officers are so stupid that they... that they go around and... and continue to give reasons when that's... when that's going to make it more difficult for them to sustain the arrest and subject them to... to personal liability.

Mr. Comey: --Well, for the most part, Justice Scalia, it does not come back to haunt the officers because the vast majority of arrests are lawful.

The vast majority of officers have probable cause for the thing that they arrest the person for, and they arrest him for criminal conduct.

Justice Ginsburg: But if they're told in this case that they're subject to 1983 liability out of their own pockets if they get it wrong, then it seems to me they would pursue the safe course and say nothing.

I mean, you did say at one point in your brief that when a warrantless arrest is effected, the officer must inform the arrestee of the officer's authority and cause of arrest.

But that's not true on the spot as a matter of Washington law or constitutional law, is it?

Mr. Comey: The issue of... of the constitutionality of that has never been ruled on by this Court.

There are--

Justice Ginsburg: Well, you're not urging that the Constitution requires the officer on the spot to state the cause of the arrest, or are you?

Mr. Comey: --Personally, Your Honor, I think that that would... that would certainly comport more with the common law that was extant at the time the Constitution was--

Justice Souter: Well, regardless if it... whether it comports with the common law, I don't see why the rule that you are urging, closely related, is going to make a dime's worth of difference unless ultimately we hold that there is an obligation to state the cause at the time of the arrest.

Mr. Comey: --Because, Your Honor, even if the... even if the cause of the arrest is not stated at the time of the arrest, the person must be booked for something.

There's a... a report that's generated.

In this instance--

Justice Souter: Okay.

The booking occurs after arrest, and I thought what we were concerned with in this case was the validity of the arrest, not the booking.

Mr. Comey: --Correct, Your Honor.

Justice Souter: Okay.

Now, if... if the... if the... if it is the validity of arrest, which... which is in issue, I don't see why your rule is going to make any difference in the long run unless we go the further step and say, in order to make this work, i.e., enforce Fourth Amendment values, at the time of the arrest the cause has got to be stated.

Am... am I missing something?

Mr. Comey: Well, Your Honor, I would analogize it to the... the arrest rule.

Whether someone is or is not under arrest from a Fourth Amendment standpoint is based on an objective test, and it is viewed after the fact.

Justice Souter: Well, based on an objective test, we'll get absolutely nowhere.

The person who is arrested is not in a position to be making objective or subjective assessments, by and large.

He probably knows what he's being arrested for because it's obvious, but then we have cases like this, which are the only ones that are going to be litigated, and he may not know.

The... the fact still, it seems to me, is obvious.

If we go your way, we're going to have to go the further step of requiring the cause to be stated.

Isn't that, as a matter of common sense, true?

Mr. Comey: It would certainly make it easier, but it's not necessary.

Justice Souter: All right.

I'll be candid with you.

I think it is necessary.

But the... I guess the... what I'm getting at in all of this is you're asking us to take steps to solve a problem, and I don't think you've demonstrated what the problem is.

We keep coming back, as we have several times, to the lack of empirical studies.

Have we got something to worry about in... in enforcing Fourth Amendment values that we can only guard against if we go your way?

Mr. Comey: Well, Your Honor, I would say that the fact that there are six circuits that have adopted this policy shows that this is... that this is a problem that occurs nationwide.

Justice Souter: Then what is the... yes, but what's the justification for doing it?

What is the practical problem that we are concerned with?

Mr. Comey: The practical problem is that people are being arrested for conduct that is, at its base, not criminal.

Justice Scalia: But they should have been arrested.

I mean, so long as they should have been arrested, who cares?

In this case, I mean, it'll... it'll be ultimately be tried by a jury I... I guess, but your... your client pulls up behind another car with wig-wag lights flashing, like a police car.

Right?

He has a police scanner on the seat next to him.

He has handcuffs.

He has tinted glass in front of the license plate... of his license plate, so it can't be... can't be read.

It seems to me there was obvious probable cause to... to arrest this fellow for impersonating a police officer.

And I would have hoped he would have been arrested so he wouldn't go around and... and pull up behind another car.

What is the problem?

Mr. Comey: Well, Your Honor--

Justice Scalia: It seems to me he should have been arrested, and the... and the mere fact that the police officer gave the wrong reason for arresting him doesn't make me feel very bad about the arrest at all.

I'm glad he was arrested.

Mr. Comey: --I'm going to disagree on two points.

First, at the trial court, the State did not argue that he could have been arrested for other crimes.

The jury was never instructed on the elements of these supposed other crimes.

And we pointed that out in the appeal in the reply brief.

Justice Stevens: Yes, but did you object to the instructions in the trial court?

Mr. Comey: No, Your Honor, because the--

Justice Stevens: One of the problems I have with the case, very frankly, is that the jury has already ruled against your client on the qualified immunity issue carrying out instructions given by the judge that were not objected to by your client.

Mr. Comey: --That's correct, Your Honor, but the only instructions that were given regarding... regarding what they needed to find to find a violation were the Privacy Act instructions.

Justice Stevens: But whose fault is that?

Mr. Comey: Well, Your Honor, I think if the State wanted them to... qualified immunity is an affirmative defense.

If they wanted the State to find... if they wanted the jury to find there was impersonation, they should have requested an instruction on that because impersonation in Washington requires more than simply taking an action that creates an impression that you're an officer.

It also... under first degree, there has to be specific intent to defraud someone, and here the only thing he did, he gave them a flashlight and helped them jack up their car.

On the issue of the wig-wag headlights, the transcript shows that the officer spent a minute or 2, by his own estimation, on the scene behind Mr. Alford's car, saw no wig-wag headlights.

And as for the scanner, the... the transcript, page 246... he admitted at trial it was actually a ham radio, not a portable police scanner.

Justice Ginsburg: But I thought that the reason that the police went after your client after he left the vehicle that was disabled was because the officers at that point suspected that he might be impersonating a police officer.

That's what the people in the... the disabled vehicle told the officer.

They said he had flashing headlights.

We thought he was a police officer.

And... and wasn't the original following of your client triggered by the suspicion that he might be impersonating a police officer?

Mr. Comey: Yes, Your Honor, and that... that... we have not argued that there was not suspicion sufficient to... to have a stop to do investigation.

However, under the Washington statute, there was not evidence sufficient to show probable cause that there was an actual crime--

Justice Kennedy: Under Washington law, is it lawful for your client to have headlights... wig-wag lights?

Mr. Comey: --No, Your Honor.

It is a traffic violation.

That is a non-arrestable offense, and that was admitted at court and also here today.

Justice O'Connor: Was your client ever found guilty of any offense at all?

Mr. Comey: No, Your Honor.

Even the traffic infraction was dismissed by the judge.

Justice Kennedy: But it's unlawful to have wig-wag lights, and I take it it's an arrestable offense to impersonate a police officer.

Mr. Comey: Yes, Your Honor, but that--

Justice Kennedy: So that would... that would certainly be probable cause to arrest just based on the wig-wag, plus the fact he lied to the police in... in instructing them the button to push or didn't tell them what button to push to make them go.

Mr. Comey: --No, Your Honor.

The obstruction charge also under Washington law... under the case law interpreting the statute, there has to not only be the... the hindrance or obstruction.

There has to be specific intent, and there has to be obstruction in fact.

And in this case, both of the officers testified that they... that he pushed every button they asked him to.

He opened the hood for them.

He let them look at the... the flasher unit.

He showed them the manual.

They both say that they saw this button that after the arrest they pushed... one of them pushed.

However, there's obviously no obstruction in fact if... one of them actually said at trial that he didn't ask him to push the button because he wanted to see whether he would push it or not.

So there's no... again, there's no facts to support a finding of probable cause even on the obstruction because the officers were essentially just letting him hang himself.

Justice Scalia: Well, that... that isn't the issue before us here.

I... I assume that for purposes of the question on which we granted certiorari, we have to assume, or else the whole thing doesn't make any sense and it's all... it's all arguing about nothing... we have to assume that there was probable cause on some other ground than the ground which he stated or anything closely related to the ground which... which the officer stated.

Isn't that... isn't that the... the manner in which this case gets to us?

Mr. Comey: Your Honor, we raised the issue at the Ninth Circuit that there had been no evidence put forward on the other crimes.

And we pointed out that even the deputy prosecuting attorney... and in fact, even in closing argument, when they addressed the... the wig-wag headlights, et cetera, they stated specifically that that information went to what they called his intent to unlawfully record.

Justice Scalia: But... but that's not the ground on which the Ninth Circuit decided it.

The Ninth Circuit never had to reach the question of whether there was probable cause on these other grounds--

Mr. Comey: Correct, Your Honor.

Justice Scalia: --because it found, even if there was these other grounds, they're not closely related to the illegal taping.

So I suppose you're telling us that if we find that we do not like the closely related rule, that it's not part of... of United States constitutional law, what we should do is remand to the Ninth Circuit so that they could determine whether there was probable cause on the other grounds.

Mr. Comey: That's exactly right, Your Honor.

And in... in looking at this... this probable cause determination and the reasonableness requirement of the Fourth Amendment, the qualified immunity, of course, was a doctrine that was advanced by the Court to address specific problems.

None of those problems are impacted in any way by the closely related offense, this subset of qualified immunity cases.

Justice Stevens: May I ask one other question about the proceedings in the trial court?

Mr. Comey: Yes, sir.

Justice Stevens: Was there a motion for summary judgment by the defendants claiming, as a matter of law, they should be entitled to qualified--

Mr. Comey: Yes, sir.

Justice Stevens: --And that was overruled.

Mr. Comey: That was denied, yes.

Justice Stevens: And then there was a jury trial and the jury disagreed with it and, in effect, said there... there was basis for qualified immunity.

Mr. Comey: Yes.

Yes, Justice Stevens.

And the... in reviewing the transcript and in reviewing the... the instructions and the ruling on the summary judgment motion, the reason that Senior Judge Bryan did not rule on the qualified immunity was twofold.

One, at the time of the summary judgment motion, one of the officers was... well, was lying about having contacted the prosecutor prior to making the arrest, and he noted in his order that there was a factual dispute.

So summary judgment wasn't appropriate.

And second, Judge Bryan indicated that essentially there was a problem created by the Saucier opinion because he felt that it was somehow possible that there could have been an arrest effectuated without probable cause, but that there was a reasonable mistake on the part of the officers.

So this did not proceed to the jury on the... on this closely related offense doctrine.

It didn't proceed on there were these other crimes for which probable cause existed, but on this broad standard of good faith and reasonable mistake.

Justice Stevens: What is your understanding of the reason for the jury's verdict on this issue?

Mr. Comey: I almost hate to say it, Your Honor, but I believe it was a lack of sympathy.

That... that is my... much like with Justice Scalia, I believe they... they looked at the... the circumstances and even though there was not probable cause to have arrested him, they came to the conclusion we don't like Mr. Alford.

We're not going to find for him.

Justice Stevens: May I ask one other question then too?

Justice Scalia: That's not my reason.

I don't even know the man.

I'm just--

[Laughter]

Justice Stevens: In... in your view is the closely related doctrine a... a matter of closely related as a matter of law between two different offenses or is it a matter of... are the facts relevant?

For example, could one argue that these offenses were factually related pretty closely because they grew out of the same central group of facts?

Mr. Comey: In our brief, Your Honor, I often used the phrase same conduct test because in amalgamating the six different circuits, that appeared to be the most consistent test and the one that's most consistent with the objective standard and with the reasonableness standard, that if... and I, again, go to the no harm/no foul.

If you're engaging in conduct that would have and should have led to your arrest, if it's the same conduct for which you were arrested and it's simply misnamed, then there essentially is no harm of constitutional magnitude.

But otherwise--

Justice Ginsburg: Well, then you have a very narrow view of closely related.

It comes down to misnomer cases.

It's one thing to say... what the officers told the DA, although after they arrested him... didn't they describe the whole episode from when they saw Alford pull up behind the disabled vehicle?

They described that and they mentioned the flashing lights.

They described the whole episode up till the point where they... the officers apprehended him and saw the equipment and then noticed... they told the DA everything, and he said, yes, you have probable cause.

Mr. Comey: --They did describe the entire episode to him, Justice Ginsburg.

Justice Ginsburg: So why couldn't it be related in time and space rather than legally related?

Mr. Comey: Well, I'm not urging something as narrow as... as a semi-Blockburger test.

But here you have essentially two discrete conducts that were being examined by the officers: number one, the actions surrounding the headlights; and number two, the actions surrounding the taping.

And the trial... I mean, it was very clear that the two were treated as discrete incidents by the police.

At the moment Devenpeck saw the tape recorder... and he testified at trial.

When I saw the recorder in the record mode and saw that it was moving, that's what he stated to him constituted probable cause for the arrest.

The moment he saw that tape recorder and saw the play and record buttons were pushed, he informed Mr. Alford, you're under arrest for making an illegal tape recording.

So when looking at whether something is... is sufficiently related or not, obviously there's going to have to be more than a modicum of logic that's used, but objectively this separates rather nicely into two discrete incidents for the analysis.

Justice Breyer: Why... why is it exactly that a policeman who comes on a difficult scene, gun in one pocket, the guy has a knife in another, and he throws a punch?

Now, the policeman might make a mistake about that.

He... he thought he threw a punch, but he made a mistake.

Now... now, why is a policeman less likely to make that kind of a mistake than make a mistake about what crime to label it?

Mr. Comey: Well, Your Honor, we're not concerned so much... this doctrine is not concerned so much with what to label the crime.

Justice Breyer: No, no.

You said... you... you say everybody agrees in this case that if the policeman had reasonable cause objectively to arrest the person for A, but he arrested him for B instead, there are some circumstances in which that's okay.

And on their view, it's... as long as... it was always okay, really, as long as objectively there was reasonable cause.

On your view, you're going to add a little thing.

You're going to add, and by the way, it's not okay unless that conduct that he looked at was in fact illegal.

So you say... because policemen could make mistakes about labels, but they're not likely to make mistakes about throwing a punch.

So I just wondered why not.

I mean, they got the wrong guy for throwing the punch.

You know, so... so what?

Why is that so... that... that supposedly in your view is some terrible constitutional harm, but if he just mislabels it, it's not a terrible constitutional harm.

And I'm just puzzled as to where that distinction comes from and why.

Mr. Comey: Well, Your Honor, the distinction in... in this particular case and the distinctions in the... in the cases that run the gamut around the circuits generally show one thing that we--

Justice Breyer: --that the circuits all agree with you.

Now, my only problem is it's hard for me to see why they all agree with you.

[Laughter]

And... and that's where I'm sort of stuck.

Mr. Comey: --Your Honor, if we start with first principles, and the first principle that underlies this case is there is, from the framing area... era, a general mistrust of warrantless arrests.

From that, we step to the reasonableness clause.

From the reasonableness clause, we then step to this judicially created qualified immunity, which subsumed the good faith analysis.

So what we find is we're stepping further and further away from the original principle.

And the... on the original principles, he was arrested without a warrant.

Wrong.

Under the Constitution we have reasonableness.

Okay.

He's arrested.

Was it a reasonable arrest?

The court has said we generally say that if an arrest has probable cause, then it's reasonable unless there are these exigent circumstances, excessive force, et cetera.

Then under qualified immunity, it's even a step more attenuated, that even though there might not have been probable cause, if there was arguable probable cause, then there would be a violation, but no one is going to be liable for it.

Justice Stevens: Yes, but Mr. Phillips, let me go back first principles.

You are complaining about an arrest which you admit was valid.

Do you not... do... do you not that the arrest was supported by probable cause and therefore was a valid arrest?

Mr. Comey: In this instance, Your Honor?

Justice Stevens: Yes.

Mr. Comey: Certainly not.

Justice Stevens: Oh, I misunderstood.

I thought we were just talking about qualified immunity.

But you challenge the arrest itself even though you admit there was probable cause for the arrest?

Mr. Comey: No, Your Honor, because we don't feel that there was probable cause for the arrest.

Justice Scalia: We don't that challenge that here, though.

I asked you that question earlier, and I thought you agreed that for purposes of our deciding this case, we... we will assume, though you do not concede the point, that there was probable cause on one of the other grounds.

Mr. Comey: That in order to address the Ninth Circuit's holding--

Justice Scalia: Exactly, exactly.

Justice Stevens: And... and there's no need for the Ninth Circuit's rule unless there was probable cause because if there was no probable cause, you win on that ground.

You don't have to get into this closely related offense doctrine.

Is that correct?

Mr. Comey: --If there was probable cause--

Justice Stevens: No.

If there was no probable cause.

Mr. Comey: --Oh, correct.

If there was no probable cause for--

Justice Stevens: Then you win without this fancy doctrine.

Mr. Comey: --That's... that is correct, Your Honor, and that was--

Justice Stevens: This... this doctrine only comes into play and is only required in cases involving a valid arrest and a... a mistake by the officer in identifying the wrong cause for the arrest.

So it's an extension of the qualified... it's a... it's a... an application of the qualified immunity doctrine to say you are not protected even though you acted lawfully.

Mr. Comey: --Well, because it actually... to turn it back around, you're not protected because you did not act lawfully.

You did not act lawfully because--

Justice Stevens: No, but if you say the arrest was valid, he did act lawfully although we didn't realize the reason why he did.

Mr. Comey: --Your Honor, the cases that have examined this doctrine have... have looked at it as sort of straddling the Fourth Amendment and the qualified immunity analysis.

Justice Souter: But... but don't you reconcile the... the problem of the straddle by saying that unless the probable cause, which we will assume existed, is for a closely related offense, the whole arrest was invalid?

Isn't that your position?

Mr. Comey: Correct.

Unreasonable.

Justice Souter: Okay.

Now, let me ask you... you one other question.

You... you started out in getting down to first principles with disfavor of warrantless arrests.

Would your position be different if the officer had somehow gotten an arrest warrant on the spot for illegal taping?

Wouldn't you be making the same argument?

Mr. Comey: Certainly, Your Honor, and there we would--

Justice Souter: So it has nothing to do, essentially, with warrantless or nonwarrantless arrests.

Mr. Comey: --Well, in this case it does, but had there been a warrant--

Justice Souter: Well, in this... yes, but on your theory, that is... that is incidental.

That is not essential.

If he had had an arrest warrant for illegal taping, you'd be making the same argument.

Mr. Comey: --That there was no probable cause for the arrest.

Justice Souter: That's... that's right.

Mr. Comey: Correct, Your Honor.

Justice Souter: Yes.

Mr. Comey: And I think that that... of course, that... as we point out in our brief, there's support for that, that historically the warrant must show the reason that someone is being arrested.

So as we pointed out, there's this... an odd--

Justice O'Connor: Well, you don't have any case law to cite to us for that.

That gets us into a whole new doctrine.

Mr. Comey: --Well, Your Honor, I think one of the most fundamental principles that we can look at on showing the reason why you're being arrested is the great writ of habeas corpus where, in order to hold someone, they must show why he is being held.

Justice Ginsburg: But you've already conceded that it... Washington law doesn't require the officer on the spot to say why he's making the arrest and that there's no decision of this Court or any court that I know that said the Constitution requires the officer on the spot to give a reason.

Mr. Comey: That's correct, Your Honor.

So what we have posited and what the Ninth Circuit... what they did in the Gasho case, for example, is after the fact you can look at the actions that were taken by the officers, the booking sheet, et cetera, to give you some objectively verifiable evidence of the cause for the arrest.

And really what it's looking at is there needs to be a nexus between conduct and arrest, and--

Justice Stevens: Thank you, Mr. Phillips.

Ms. Hart, you have 5... 5 minutes.

Rebuttal of Maureen A. Hart

Mr. Hart: I think I'd only like to make one point, Your Honors, and that is that the Fourth Amendment does not make the validity of arrest a game that the government loses even when there's probable cause for arrest, but the closely related offense doctrine does.

And for that reason, it should be rejected and we respectfully ask the Court to reverse the decision of the Ninth Circuit.

Justice Stevens: Thank you, Ms. Hart.

The case is submitted.

Attribution:

The Oyez Project

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